The Coming Race War: And Other Apocalyptic Tales of America after Affirmative Action and Welfare 9780814744284

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The Coming Race Wail

The Coining Race War? And Other Apocalyptic Tales of America after Affirmative Action and Welfare

Richard Delgado With an Introduction by Andrew Hacke r

NEW YOR K U N I V E R S I T Y PRES S New York and London

NEW YOR K U N I V E R S I T Y PRES S New York and London Copyright © 1996 by New York University All rights reserved Library of Congress Cataloging-in-Publication Dat a Delgado, Richard. The coming race war? : and other apocalyptic tales of America after affirmativ e actio n and welfare / Richard Delgado : with an introduction by Andrew Hacker, p. cm . ISBN 0-8147-1877-9 (alk . paper) 1. United States—Race relations. 2 . United States—Rac e relations—Forecasting. 3 . Afro-Americans—Civil rights . 4. Affirmative actio n programs—United States . I . Title. E185.615.D44 199 6 305.8'00973~dc20 96-780 1 CIP New York University Press books are printed on acid-fre e paper, and their binding materials are chosen for strengt h and durability. Manufactured i n the United States of America 10 9 8 7 6 5 4 3 2 1

Barbarous acts are rarely committed ou t of the blue.... Ste p by step, a society become s accustome d t o accept , wit h les s an d les s mora l out rage arid with greater and greater indifference t o legitimacy, the successive blows. —Danie l Bell, The Radical Right And perhaps you may guess why I love to stay here abroad, and mainly in Italy—it is because people are kind to me, I feel kindness round me, good-will, an d love . And I have com e to thin k o f m y ow n countr y a s lacking i n kindness ; a t hom e peopl e ar e indifferen t o r absorbe d o r silent; it is like death, when it is not like killing. —Selected Letters of George Edward Woodberry Behind th e doo r o f ever y contented , happ y ma n ther e ough t t o b e someone standin g wit h a littl e hamme r an d continuall y remindin g him wit h a knock tha t ther e are unhappy people, that howeve r happ y he may be, life will sooner or later show him its claws, and trouble will come to him—illness, poverty, losses, and then no one will see or hear him, just as now he neither sees nor hears others. —Anton Chekhov, Gooseberries

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Acknowledgments ix Foreword by Andrew Hacker xi Introduction 1 1 Empathy and False Empathy: The Problem with Liberalism 4 2 Legal Instrumentalism and the Rule of Law: A Blueprint for Reformers in Hard Times 37 3 Merit

and Affirmative Action 62

4 American

Apocalypse 99

5 Cosmopolitanism 6 Citizenship:

and Identity Politics 130

How Society Rejects the Very

Persons It Most Needs 148 Epilogue 166 Notes 169

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I wish t o than k Jea n Stefancic fo r continue d inspiratio n an d encour agement; an d Bonni e Ka e Grover , Jennife r Bradfield , an d Pamel a Compos fo r invaluabl e researc h services . Specia l thank s g o t o Der rick Bell , wh o graciousl y len t m e som e o f hi s persona e a s wel l a s moral support , an d t o Jua n Perea , wh o contribute d suggestion s fo r chapter 6 . Marg e Brunner , Cynthi a Carter , Ann e Guthrie , Vaness a Smith, an d Ka y Wilki e prepare d th e manuscrip t wit h intelligenc e and precision. My gratitude goes to Niko Pfund, m y editor at NYU Press, and t o the Rockefelle r Foundatio n Scholar-in-Residenc e Progra m i n Bel lagio, Italy, where many of the ideas for this book took form . I am grateful t o the following journal s for permission t o reprint o r adapt portions of essays that appeare d i n their pages: California La w Review, for chapter 1 , "Empathy and False Empathy" [84 Cal. L. Rev. (1995)]; Pennsylvani a La w Review , fo r chapte r 2 , "Race , Lega l Instrumentalism, an d th e Rul e o f Law " [14 3 U . Pa . L . Rev . 37 9 (1994)]; and Georgetow n La w Journal, fo r chapte r 3 , "Meri t an d Af firmative Action " [83 Geo. L.J. 1711 (1995)].

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Even i n hi s lineage , Rodrig o i s tellin g u s a story . Hi s fathe r i s o f African descen t an d hi s mothe r i s Italian . Outsid e o f th e Unite d States, he would be known an d recognized as an individual of mixed parentage. Lati n American s migh t cal l hi m "mulatto " o r "creole, " depending o n hi s feature s an d hue . I n Sout h Africa , h e woul d b e designated a s "colored, " a group given an identity distinc t an d sepa rate from th e nation's two major races . The Unite d States , however , remain s th e onl y countr y wit h n o intermediate categories . Wher e th e principa l race s ar e concerned , you ar e eithe r blac k o r white . Thi s ma y b e wh y Hispanic s ar e es chewing racia l labels , preferrin g t o emphasiz e thei r nationa l origi n and culture . Similarly , person s onc e groupe d i n a "yellow " rac e ar e now stressin g thei r mor e specifi c Chines e o r Japanes e o r Korea n heritage. By the same token, Native Americans associate themselve s with tribal traditions rather than a common racial affinity . Not onl y ha s Rodrig o a whit e mother : i f hi s African-America n father i s in any way typical, he will carry at least som e white genes. So Rodrig o mus t b e mor e tha n hal f white . Eve n so , Americ a ha s decided tha t h e an d other s lik e him mus t b e calle d "black. " Thi s i s the cas e wit h Lan i Guinier , th e lega l scholar , wh o ha d als o ha d a white mothe r an d a blac k father . I t hold s fo r Augus t Wilson , th e playwright; Walte r Mosley , th e creato r o f th e Eas y Rawling s detec tive series ; a s wel l a s th e childre n o f O . J . Simpso n an d th e lat e Nicole Brown Simpson . Why do we, of all nations, insis t o n a shar p racial bifurcation wit h no shadings or blurrings? The reaso n i s tha t th e gul f wa s create d an d the n perpetuate d b y whites, fo r thei r ow n protection . Onl y black s coul d b e slaves ; a n intermediate categor y woul d pu t childre n wit h on e white paren t a t risk o f th e auctio n block . (Thu s plantatio n owner s ofte n free d th e offspring the y ha d wit h enslave d women. ) Bu t a historica l reaso n does not explain why whites have had the chasm continue . XI

xii Foreword The answer is instructive an d ironic. Many if not most whites se e themselves as belonging to a superior human strain . Needless to say, almost all denounce "maste r race 7' theories, and separate themselve s from ope n bigot s lik e Mar k Fuhrman . Eve n so , ho w man y white s have not wondered why other races have not com e up with a Shakespeare, a Michelangelo , a Mozart , o r a Newton ? Th e creatio n o f intermediate categorie s woul d clos e wha t i s no w a chasm . Wer e persons o f mixe d parentag e place d o n a continuu m mergin g int o whites, it would diminish the distinctiveness of those who now pride themselves a s being th e mos t highl y evolve d race . This fea r mean s that eve n Rodrigo , a distinguishe d lega l scholar , mus t b e kep t a t a distance from hi s Caucasian colleagues . At th e sam e time , al l wh o ar e grante d admissio n t o Th e Whit e Club ar e deeme d t o b e equa l members . Gon e ar e th e day s whe n i t was commo n t o spea k o f "whit e trash " o r refe r t o lesse r stocks . Whites no w stic k together . The y hav e somethin g i n common : tha t all stand far apart from blacks . Note the name that has been given to Rodrigo's amiable antagonist. Perhaps in the past, a Kowalsky migh t be called a "polack" o r made the butt o f Polish jokes. And some will be ol d enoug h t o recal l Marlo n Brando' s portraya l o f a crud e an d brutal Stanley Kowalski in Tennessee Williams's A Streetcar Named Desire. However , th e Kowalsk y o n thes e page s i s a full y fledged white, and is indeed portrayed as an esteemed member of his race. At th e sam e time , th e Clu b look s t o it s ow n perpetuation . A s Rodrigo himself point s out , whit e parents ar e not producing enoug h babies t o sustai n thei r race . Thus th e Clu b i s willing t o co-op t ne w members, as it did with other marginal groups in the past. Now being considered ar e persons onc e calle d "Orientals, " wh o ma y b e sai d t o be bein g groome d a s probationar y whites . Thi s ma y b e wh y w e n o longer spea k o f a "yellow " race . Hispanic s ar e als o candidates , s o long as they downplay their Latin origins. However, even an intellectual o f Rodrigo' s statur e wil l no t mak e th e list . (No t tha t h e woul d wish t o assimilate , whic h h e call s "identificatio n wit h th e aggres sor.") Still , jus t a s Colin Powel l will alway s be th e "blac k general, " so Rodrigo will remain the "blac k professor. " The Unite d State s ma y hav e style d itsel f a s a meltin g pot . Bu t from th e very outset , on e strai n o f humanity wa s denie d a future o f full acceptanc e an d assimilation . African s wer e brough t her e fo r a purpose, and it was not t o become citizens. Despite a war and eman-

Foreword xii i cipation, an d a century of legislation, th e ancestors of slaves are stil l seen a s not quit e o n a par with othe r Americans . This ma y b e wh y every so often Rodrig o throws up his hands, and muses about dissociating himself fro m mainstrea m America . Hence too his continuing critique of American institutions and the assumptions o n whic h the y ar e based. Perhap s th e mos t profoun d o n these pages is his examination o f the myth o f "merit" an d the role it plays in the perpetuation of power. At first encounter, we are all in favor of merit an d a system based on that principle. After all , how ca n anyone oppose choosing persons of superior talent, th e highest level s of competence, and who have the best possible qualifications ? But thes e ar e vagu e criteria . Th e issu e Rodrig o addresse s i s ho w America define s meri t an d refines th e conception in practice. He begins by sayin g that "meri t i s what th e victor s impose, " an d ha s become "basically, white people's affirmative action. " He does not hesitate to say that most selection procedures have a racial basis and bias. This i s particularl y eviden t wit h standardized , machine-grade d multiple-choice tests . It i s not s o much tha t thei r question s cal l fo r information tha t white people are more likely to have, although tha t is frequently th e case . Rather, th e very format o f th e test s reflect s a culture tha t is essentially European in its antecedents an d character . (Even allowin g fo r successiv e wave s o f immigrants , th e syste m re mains mainl y "Anglo-American, " a phras e create d b y Alexi s d e Tocqueville an d stil l relevan t today. ) Th e tests , use d a s selectio n mechanisms o n employmen t an d education , wer e initiall y cas t a s neutral arbiters . Th e fe w wh o achieve d hig h score s woul d b e give n preference regardles s o f thei r origins . Thi s i s wh y Jew s i n th e past , and Asians today, regard the tests as an equitable innovation . However, a s Rodrig o point s out , th e Scholasti c Assessmen t Tes t and those used fo r graduat e schoo l admission s an d civi l servic e promotions, al l "emphasiz e linear , rationalisti c thought. " B y thi s h e means tha t the y requir e th e candidat e t o displa y a certai n menta l mode. Just t o start , on e must b e prepared t o sif t realit y throug h th e matrix o f th e multiple-choic e framework . No t least , th e tes t take r must accep t the premise that ther e is one correct answer , which th e test maker s hav e chose n an d yo u mus t respect . I n addition , th e questions mus t b e answere d a t a one-a-minut e rate , whic h hardl y allows time for pondering meanings and exploring implications.

xiv Foreword But what , i t ma y b e asked , i s "racial " abou t linkin g synonyms , interpreting shor t paragraphs , o r solvin g algebrai c equations ? Clas s may be involved. As we know, score s are strongly related to income. Not surprisingly , person s fro m better-of f home s ten d t o b e bette r prepared fo r th e tests . S o let' s tak e a loo k a t a sampl e o f student s who too k th e SA T i n a recen t year . T o neutraliz e th e economi c factor, al l the student s wh o were examine d cam e fro m middle-clas s families, wit h income s betwee n $50,00 0 an d $60,000 . S o w e ma y presume tha t the y attende d decen t school s an d escape d th e pitfall s associated with being raised in poorer neighborhoods. Here were th e average scores , broke n dow n b y fou r majo r groups : Asians , 999 ; Whites, 942; Latins, 875; Blacks, 798. Since the Asians outscor e Caucasians , i t coul d be argued tha t th e SAT i s no t a "white " test . Bu t really ? On e coul d a s easil y sugges t that th e curren t generatio n o f Asian s ha s learne d ho w t o d o thing s the white way, and are indeed beating whites at the game that white s themselves created . Thi s ha s happene d wit h technolog y alon g th e Pacific Rim , an d i s comin g t o roos t i n ou r ow n backyard . Whil e Asians obviousl y wis h t o preserv e thei r ow n cultures , the y hav e shown tha t the y ar e avid t o ente r th e moder n world , an d have bee n doing just that . An d insofa r a s test s lik e th e SA T decide "merit " i n that world , the y ca n b e see n a s anothe r technolog y tha t ha s t o b e mastered. Due to Asians' success, whites ar e frequently finding the y are fallin g t o secon d place . In th e freshma n classe s a t Berkele y an d UCLA, Asians are outnumbering Caucasians . Which lead s t o th e questio n o f wh y middle-clas s blac k student s do less well o n th e tests . In thei r case , one canno t blam e inner-cit y schools an d lac k o f mone y fo r coachin g courses . Th e reaso n lie s largely i n th e "linear , rationalistic " expectation s tha t Rodrig o cited . Black Americans, including those with middle-clas s careers , are still apt t o spen d mos t o f thei r live s i n segregate d surroundings . Thos e settings ar e mor e likel y t o encourag e menta l style s othe r tha n th e linear structur e o f the multiple-choic e mode . Black culture tend s t o be at home with what might be called a discursive style, which take s a more forthright approac h to intellectual inquiry. Rodrigo elaborates on thi s whe n h e propose s tha t court s admi t testimon y based o n storytelling. Instea d o f bein g boun d b y rigi d rules , th e searc h fo r truth should encourage a more relaxed ambiance. Given th e hegemony o f the tests , society's dominan t position s go

Foreword x v to those with th e highest numerica l scores . But in allowing this, w e are no t gettin g a meritocrac y s o muc h a s a testocracy . Henc e Ro drigo's conclusio n tha t "ou r traditiona l meri t criteri a ar e ensurin g mediocrity." Severa l examples will suffice. Ou r automobile industr y is filled with MB A graduates, who presumably di d well on the tests . Yet a doze n othe r countrie s ar e sellin g thei r car s i n Argentin a an d Egypt an d Indonesia, an d eac h passing year leaves th e United State s with a smaller share of the world market. At home, our police departments mak e multiple-choic e test s thei r first hurdle . A s a result , many i f no t mos t force s en d u p wit h commuter s fro m th e suburbs , who kno w littl e abou t th e peopl e an d place s the y ar e suppose d t o protect an d serve. Similarly, ou r medical car e has been in th e hand s of high-scorin g physicians , wh o hav e mad e u s first i n th e worl d i n high-tech instrumentatio n an d no t fa r fro m th e botto m i n th e stat e of our health. Our society has no shortage of men an d women who would mak e excellent executive s an d physician s a s well a s inspirin g polic e offi cers. However , the y ar e unlikel y t o b e foun d s o lon g a s irrelevan t tests remain as barriers and we allow talent t o be defined b y printedout numbers. In his openin g chapter , Rodrig o has som e hars h thing s t o sa y abou t white liberals. All too often, h e remarks, they walk awa y "whe n th e going get s tough. " Henc e thei r retrea t o n affirmativ e action , alon g with a readiness t o disapprov e o f leader s tha t blac k peopl e choose . Whites wh o styl e themselve s a s friend s ar e als o pron e t o displa y "false empathy, " i n whic h the y clai m affinit y wit h peopl e the y hardly know and then only in a superficial way . Rodrigo has apparentl y conclude d tha t littl e i s t o b e gained fro m alliances with whites. Even liberals "support and tolerate group gains for black s onl y whe n thes e als o benefit them. " S o he propose s tha t well-meaning whites should work with—and on—their ow n people. Some goo d ma y com e o f this , sinc e whit e peopl e ar e generall y un willing to listen to blacks, apart from thos e who pitch messages tha t whites want t o hear. Calls ar e increasingl y hear d fo r a syste m tha t make s th e bes t o f separation. Integration has not worked, largel y because whites neve r believed in it, except on the most token of levels. It also requires that blacks abando n muc h o f thei r culture , whethe r i n embracin g whit e

xvi Foreword mental styles , includin g dictio n an d demeanor . Suc h disparat e figures a s Clarenc e Thoma s an d Loui s Farrakha n hav e counsele d tha t blacks d o themselves a disservice i f the y fee l the y ca n onl y advanc e in the company of whites. Even whil e i t ha s extolle d th e meltin g pot , Americ a ha s ofte n respected groups that wish to remain separate. The Amish, for example, are not compelle d t o send their teenager s t o high school. Orthodox and Hasidic Jews can creat e enclave s having only minima l con tacts wit h th e secula r world . Th e sam e hold s fo r adherent s o f th e Nation o f Islam. But if thes e communitie s ar e to prosper, the y mus t do mor e tha n bu y an d sel l t o thei r ow n members . The y mus t als o have something to offer th e larger economy. In the case of the Amish, their high-qualit y crop s readil y fin d buyer s i n th e nationa l market . In Ne w Yor k City , i f no t elsewhere , observan t Jew s dominat e th e diamond trad e and retail outlet s for electroni c equipment . I f Africa n Americans wish to move toward a more formal separation , the y will need t o brin g mone y int o thei r communities . Th e options—whic h are no t mutuall y exclusive—ar e t o buil d daytim e career s i n th e white world, o r to establis h enterprise s tha t appea l to a spectrum of clients an d customers . Move s i n thes e direction s wil l b e a centra l challenge in the decades ahead. Similar stricture s hol d fo r education . Muc h ha s bee n sai d an d written abou t th e growt h o f a blac k middl e class . And, a s Rodrig o points out , tal k o f thi s kin d i s especiall y commo n amon g whit e conservatives, wh o hol d "tha t th e rac e proble m ha s bee n solved. " (Witness the title of Dinesh D'Souza's book, The End of Racism.) A s has been noted, whether by their own choice or lack of options, most middle-class black Americans continue to live in segregated settings. These areas are well tended and have a affluent air , as can be seen in Baldwin Hill s i n Lo s Angeles , Universit y Height s i n Atlanta , an d throughout muc h o f Prince George s County adjacen t t o the Distric t of Columbia. But what is lacking in these suburbs are truly elite high schools, lik e thos e readil y foun d i n thei r whit e counterparts . Ther e should be a strong enough ta x base and a large enough catchmen t of students t o create high schools which are essentially black and compete wel l b y nationa l standards . O f course , ther e remain s th e issu e that Rodrig o raised : whethe r blac k American s wis h t o confor m t o the mode s o f though t tha t th e whit e worl d expects . A s ha s bee n

Foreword xvi i noted, there are alternative styles, and they promise an excellence in principle an d performance. Thi s i s a complementary challenge : new intellectual heights to match investments in the economic sphere. A sad fact o f public life is how infrequently whit e Americans have been willing to elect black office holders to represent them. Although exceptions can be cited, most whites prefer t o have laws and policies made b y person s o f thei r ow n race . Thi s i s wh y man y black s hav e concluded tha t thei r bes t chanc e fo r sharin g politica l powe r lie s i n creating district s wher e the y comprise d a majority . Du e t o thes e designs, th e numbe r o f black member s i n th e Hous e o f Representa tives has almost double d durin g the past severa l years. But as we all know, thes e constituencie s ar e unde r constitutiona l attack . I f the y are redrawn , blac k voice s wil l hav e les s o f a hearin g i n th e hall s where laws are made, which i s obviously th e ai m o f those challeng ing the districts. Still, anothe r situatio n need s t o b e addressed . I t i s no t ye t clea r that member s fro m majority-blac k seat s hav e achieve d a balance of power in th e assemblie s where the y sit . This became eviden t i n th e Congress, whe n blac k member s sough t t o alte r th e federa l la w tha t punishes selling cocaine as crack much more heavily than the traffi c in it s powdere d form . Thes e lawmaker s wer e no t exoneratin g th e drug trade : o n th e contrary , the y kne w a t firs t han d ho w i t ha s debased neighborhoods the y represent. But they were alarmed a t th e long prison term s bein g given t o s o many son s an d nephews withi n their constituencies . Ye t th e Hous e a s a whol e gav e the m shor t shrift. I n a vote in Octobe r o f 1995 , the Blac k Caucus' s amendmen t was rejected b y a margin o f 332 t o 83 . This mean t tha t no t eve n 5 0 white member s ou t o f 40 0 wer e willin g t o suppor t a measur e tha t meant much to their black colleagues. And it also shows that succes s in the legislative sphere requires building coalitions with white policymakers. Rodrigo's conclusio n i s somber . H e see s a strateg y formin g t o "increase minorit y miser y . . . t o th e poin t wher e violenc e break s out." However , h e continues , "th e rebellio n wil l b e pu t dow n . . . with white s wieldin g powe r ove r a larg e bu t powerles s blac k an d brown population o f laborers and domestics." Yet even here he ma y too sanguine . Yes , minorit y wome n ma y b e force d int o domesti c service, since aid t o singl e mothers i s being whittled away . But it i s

xviii Foreword not clea r tha t eve n jobs as laborers will be available for th e men . At this point , whit e societ y i s mor e willin g t o fill prison s tha n creat e gainful occupation s fo r me n whos e peopl e buil t s o muc h o f thi s country. Hardly an upbeat ending . Yet recall the title of this volume: The Coming Race Wart Th e onl y questio n i s whethe r t o kee p th e question mark .

Introduction: In Which the Author Explains Who Rodrigo and the Professor Are, and What They Have Been Doing So Far

In The Rodrigo Chronicles, publishe d i n 1995 , the reade r meet s m y brash, talented young friend an d graduate lawyer, Rodrigo . When we first encounte r him, Rodrigo has flown back to the States from Italy , at hi s sister' s suggestion , t o mee t "th e Professor " an d discus s th e young man' s future . Rodrig o i s thinkin g o f obtainin g a n LL.M . (advanced law) degree from a n American institution in hopes of a career as a la w teacher . Th e so n o f a n African-America n servicema n an d half-brother o f fame d U.S . civi l right s schola r an d activis t Genev a Crenshaw, Rodrig o had grown up in Italy where his father ha d bee n assigned t o a U.S. outpost. Rodrig o finishe d hig h schoo l a t th e bas e school, the n attende d a n Italia n universit y ("th e oldes t on e i n th e world, Professor") an d law school on government scholarships , graduating second in his class. Despite thei r ag e difference , th e tw o becom e clos e friends , dis cussing affirmativ e action , racia l politics , blac k crime , relation s between blac k me n an d women , an d man y othe r subject s ove r th e course o f th e volume . Th e reade r learn s ho w tw o intellectual s o f color tal k an d think , wha t the y worr y about , lik e t o eat , an d ho w they dea l with th e many challenge s of life, including th e ubiquitou s 1

2 Introduction hate stare . The reader gets to follow Rodrig o throug h his adventure s with th e IN S (which trie s t o depor t him) , hi s settlin g i n th e sam e city a s hi s professor-mentor , an d hi s yea r o f graduat e stud y a t a famous U.S . law school . The reade r als o meets Giannina , hi s room mate an d lif e companion , a published poe t an d playwright wit h he r own interest in the law. In this book, Rodrigo enters th e adult world . When it opens , he is a young law professor i n his first yea r of teaching. He and the professor meet in airports, on committees, and at conferences, maintainin g their relationshi p an d extendin g thei r rang e o f subjects . No w o n a more equa l plane , th e tw o discus s empath y an d fals e empathy , an d why peopl e o f colo r fin d the y ofte n canno t rel y o n whit e liberal s when th e goin g get s tough . Th e reade r listen s i n whil e th e tw o discuss black despair , th e assault o n affirmative action , an d the cur rent debat e ove r genetics an d "merit. " Rodrigo , a highly cosmopoli tan perso n wh o speak s severa l languages , nevertheles s consider s himself a racial activis t an d adheren t o f identit y politics . Are thes e not inconsistent? Th e professor pin s him down ; the reader learns th e answer. And in the most chillin g chapter o f all, Rodrigo's young colleagu e and friend , Lazl o Kowalsky , a brillian t youn g conservativ e wh o i s nevertheless sympatheti c t o blacks, spin s out a dark tal e of why hi s fellow conservative s are trying to kill the goose that laid their golden egg—affirmative action . Kowalsk y observe s tha t eliminatin g affir mative actio n doe s no t mak e sens e fo r th e politica l Right , sinc e it reliabl y deliver s votes , outrage s blue-colla r whites , an d allow s conservatives t o appear principled in opposing it—in contras t t o th e fuzzy liberal s wh o hav e troubl e defendin g it . So , why ar e conserva tives in think tanks, a dozen states, and in Congress trying to abolish it entirely? As Kowalsky implacably makes his case, the reader learns what America's future ma y hold. The si x chapters , o r Chronicles , i n thi s boo k tel l a story , wit h characters, adventures , an d a n unfolding plot . Thus, the best way t o read i t i s consecutively . Bu t reader s wit h limite d tim e o r a mor e specific focu s ma y wis h t o rea d chapter s 1 and 2 i f the y hav e a n interest i n th e critiqu e o f liberalis m an d mainstrea m la w an d poli tics. If the y ar e interested i n learnin g what i s wrong with conserva tism and the new Right, chapters 3 and 4 are the ones they may wish to rea d first . Reader s intereste d i n internationa l la w an d huma n

Introduction 3 rights shoul d no t mis s chapte r 5 . The middle-age d reade r wh o ha s been jus t a s intereste d i n th e professo r a s i n th e youthfu l Rodrigo , and who wants t o know his fate a s he approache s th e golden part of his career, will want to read chapter 6. This book, like its predecessor, i s an example of legal storytellin g or narrative jurisprudence, a trademark o f Critical Race Theory. Th e reader who enjoys learnin g and thinking about law and social theor y through dialogues , reflections , an d th e giv e an d tak e o f differen t voices and points o f view will have no difficulty findin g muc h mor e in th e burgeonin g literatur e an d i n NY U Press' s ow n Critica l America series.

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Empathy and False Empathy: The Problem with Liberalism

Rodrigo Returns and Accounts for His Recent Activities I wa s sittin g i n m y darkene d offic e on e afternoon , thinkin g abou t life. T o tel l th e truth , I was missin g m y youn g frien d an d protege , Rodrigo. Not long ago, I had consigned him t o the Great Beyond. But now, I was floode d wit h regre t an d sadness . I missed hi s brashness , his insouciant originality . Odd , I had not though t o f myself a s sentimental. How could I have allowed him t o succumb to the critique of narrativity in "Rodrigo's Final Chronicle?"l No w a young law professor a t a well-known universit y i n th e Midwest , Rodrig o ha d sough t me out fo r caree r advice , nearly thre e years ago, during a return tri p to th e States . Th e so n o f a n African-America n servicema n an d a n Italian mother , th e brillian t an d audaciou s youn g schola r sa w th e United States with new eyes. Despite ou r ag e difference—h e wa s the n jus t embarkin g o n a n LL.M. (graduate law) program a t a major la w school in the same city where I teach—we ha d become good friends, discussin g civi l rights, law an d economics , relation s betwee n th e sexes , an d man y othe r subjects ove r th e cours e o f th e nex t tw o years . I had gotte n a grea t series o f article s ou t o f ou r meetings . H e ha d pushe d m y thinking ,

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Empathy and False Empathy 5 challenged me to explore new realms of thought, helped dispel som e of the loneliness of this godawful job . And now, he was gone. I was just getting ready to drag myself ou t of my funk, tur n on th e light, and resume reading the pile of seminar papers that had awaited me sinc e m y return fro m th e American Associatio n o f La w School s (AALS) annual meeting , whe n I heard a shuffling soun d outsid e m y door. A brown envelop e materialize d o n my carpet , pushe d throug h the crac k b y someon e whos e footstep s I no w hear d disappearin g down the hall. "I'm here," I shouted. "Oh, I didn't see your light," a familiar voice said. I turne d o n th e switc h an d opened th e door . "Rodrigo! " I ex claimed. "I was just thinking about you. What are you doing here?" "I brought you a note explaining how I got back after tha t inciden t at the AALS. I didn't want it to be too much of a shock. I also brought you a book—a magazine, actually." 2 "Come on in. What on earth happened to you? I was afraid I would never see you again." Rodrigo picke d u p th e envelop e fro m th e floor , lai d i t o n th e corner o f m y desk , the n glance d a t m y couch . "D o you have a minute?" H e gestured towar d th e pile o f neatly type d studen t paper s i n the center of my desk. "It looks like you're busy." "Quite th e contrary, " I assured him . "Thes e grades aren' t du e fo r another week . What happene d t o you? And , before yo u begin , ca n I offer you some coffee? " Rodrigo nodded enthusiastically, an d as I busied myself measurin g the water and grounds for my office espress o maker, he began. "Do yo u remember , Professor , wher e w e wer e whe n th e light s went out?" "Yes, we had bee n talking , rathe r lat e a t nigh t a s I remember, i n that basement div e in the giant AALS hotel. We were discussing th e critique o f narrativit y an d lega l storytelling , an d i n particula r tha t section meetin g wher e severa l o f ou r colleague s attacke d th e ne w forms o f scholarshi p a s nonlegal, unfair , eve n exclusionary. 3 Other s questioned th e rol e o f student-ru n la w reviews . Yo u ha d jus t sai d something abou t ho w w e ar e al l creature s o f ou r ow n narratives , which immediately filled me with alarm. Then, the lights went out. " "I figured i t wa s the kid s playing a t th e vide o arcad e nex t t o ou r booth, an d tha t th e light s woul d b e bac k o n agai n i n a matte r o f

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minutes. 4 1 saw you put your head down, assumed you were tired, so got up to stretch m y legs and walk outside . I thought o f leaving you a note, but didn't. " "When I woke up, you were nowhere to be seen. Cream and sugar, right?" Rodrigo nodded. "Yes, please." "I was afrai d yo u ha d deconstructe d yourself , allowe d yoursel f t o become a casualt y o f Farber , Sherry , Tushnet , an d th e critiqu e o f narrativity." 5 "Nothing s o fancy , Professor , althoug h I thin k you'l l enjo y th e story. In fact, wha t too k place prompted m e t o com e see you. Aside from reassurin g you that I haven't expired, I wanted to discuss something. If you're up for it, that is." Rodrigo looked up solicitously. "It' s late." "I'm goin g strong, " I demurred. "Besides , I' d lov e t o kno w wha t happened. The coffee's ready. " I handed Rodrigo a steaming mug of espresso, he stirred in creamer and his trademark four teaspoons of sugar, and continued . "You won't believe this, but I was kidnapped. " "Kidnapped? Are you serious?" "I am. Do you remember those kids who were playing at the video games along the wall?" "Sure. They borrowed change from u s once. I remember tha t the y looked at you closely, but though t nothing of it at the time. So what happened?" "It turn s ou t the y wer e no t kid s a t all , bu t member s o f a n anti British terrorist group. This I only found ou t later. I had just stood up when, quick as a flash, ther e was a cloth bag over my head, my hands and feet were being tied, and I was carried outside and into a car. The whole thing took maybe thirty seconds." "My God! " I exclaimed . "Wha t happene d then ? An d wh y wer e they after you?" "This require s som e memor y o n you r part , Professor . D o yo u recall how I got back to the U.S. that first time?" 6 "I do," I said. "I t was a neat little two-step maneuver. After bein g deported back to Italy, you resettled in Ireland, using your law degree and takin g advantag e o f th e liberalize d gues t worke r provision s i n the Europea n Community . Yo u go t a jo b a s a paralega l i n Dublin ,

Empathy and False Empathy 7 hung aroun d coffeehouse s fo r a while, the n go t bac k t o th e Unite d States by means of a private bill." 7 "With a little hel p fro m th e Iris h Immigratio n Societ y an d a certain famou s U.S . senator wh o sponsor s thes e bills routinely. Bu t d o you remember what I did first, Professor?" 'Tm no t sure." "I think I mentioned this to you before. I bought a title of nobility from a down-at-the-heels membe r of the British aristocracy. 8 I really wanted t o ge t bac k an d star t m y LL.M . studies , an d didn' t wan t to tak e an y chances . I t turne d ou t m y investmen t wa s probabl y unnecessary—my U.S . forebears an d Italia n la w degre e were proba bly enough—but tha t small act led to my adventure." "You mea n you r kidnapper s though t yo u reall y wer e th e thir d duke of Crenshaw?" "They did . It turne d ou t tha t th e group was a collection o f exile s just chafin g fo r somethin g t o do . And whe n the y hear d fro m head quarters tha t someon e o n thei r lis t wa s apparentl y righ t her e in th e U.S., they decided to pick me up and give me a going-over." "But of course their grievance was not with you, but with the real duke of Crenshaw, the one who sold you the title." "Apparently h e was a royalist an d something o f a bad actor, fro m the liberationists ' perspective , a t least . Th e whol e thin g didn' t become clear until they got me to their hideaway. " "Did you have to do some fast talking? " "The tea m tha t commandeere d m e did . Yo u shoul d hav e see n their faces when they took the bag off my head and saw a black ma n instead o f a light-skinne d Englis h aristocrat ! Thei r leade r wa s furi ous. The y trie d t o explai n tha t th e restauran t ha d bee n diml y lit . They go t ou t th e photos . I actuall y d o loo k slightl y lik e th e duke , except fo r ski n color . I met hi m briefl y whe n I paid fo r th e title — we're about th e sam e height, weight , an d age. So, their mistak e wa s understandable." "What happened when they got through blaming each other?" "That's when J had to talk fast. On e of them wanted t o give me a hard time for having bought the title of nobility in the first place. 'A little would-b e Englisher ' h e calle d me . I could se e trouble coming , so I explained to them how I was a leftist an d a race reformer. I think I even mentioned I was a disciple of yours. I told them I had wante d

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to ge t bac k t o th e State s becaus e i t wa s m y homelan d an d I had a mission here. They looked dubious at first, the n finally gave in when I compared critica l race theory t o their ow n antiroyalis t movement . We ended up drinking Irish whiskey and singing songs. After a while, they swor e m e t o secrec y for seventy-tw o hour s an d drov e me bac k to the hotel. I tried t o look you up, but yo u had already checked ou t and headed back to the airport/ ' "It's quit e a story/ ' I said . "Remind s m e o f a certai n professor's adventure in 'Small World.' " 9 "The parallel did strike me," Rodrigo acknowledged. "Althoug h at the time I wasn't sur e it would turn out so well." "Well, I'm very happy you're back and in one piece." While Rodrigo took a swig of his coffee , I took th e opportunit y t o ask: "Bu t yo u sai d yo u ha d somethin g yo u wante d t o tal k t o m e about. Did it have to do with your kidnapping?" "It did, in a way. And also with tha t magazin e I brought you. The whole thin g got me t o thinking o f th e role of empathy. The republi cans wh o snatche d me , eve n thoug h the y wer e a t firs t take n aback , came aroun d quickl y whe n the y learne d I was a fellow reformer . A t first, I was afraid they' d just push me off a bridge somewhere. But we ended up comparing notes. It turned out we had a surprising amoun t in common. " "They identifie d wit h you r struggle , and you with theirs , in othe r words." I was silen t fo r a moment . "So , th e critiqu e o f narrativit y caused you to disappear, but empath y brought you back. Kind of pat, and, I mus t say , a littl e upbea t fo r a youn g cri t lik e you . O r a m I reading you correctly?" "You and I did talk about th e role of empathy once before, Profes sor. We agreed it is getting in shorter and shorter supply, particularly with respec t t o minoritie s o f color. 10 Ye t I wa s abl e t o connec t quickly with m y captors, once they got over their shoc k o f finding a black ma n unde r th e ba g whe n the y expecte d a bluebloo d Englis h aristocrat." "Maybe there' s som e leve l o n whic h marginalize d peopl e o f al l sorts ca n understan d eac h other," 11 I suggested . "An d so , d o yo u think thi s i s somethin g ou r peopl e ca n ta p i n thes e trouble d times , when societ y seem s t o b e devotin g les s an d les s attentio n t o ou r needs, th e Republica n righ t i s in full cry , affirmative actio n i s under attack, and welfare programs are being cut left an d right?"

Empathy and False Empathy 9 "No," Rodrig o sai d quickly . " I believ e th e opposit e i s th e case . May I star t wit h a though t experimen t tha t occurre d t o m e a s th e terrorists were driving me back to the hotel?" "I'd love to hear it. "

Rodrigo's Inquispro Example and What It Shows about the Possibility of Reliance on Empathy as a Source of Succor for Outsider Groups Rodrigo draine d hi s coffe e cup , an d looke d up . "Imagine , Professor , that som e scientifi c geniu s develop s a compute r calle d Inquispro , which i s aime d a t makin g thing s easie r fo r ou r overworke d cour t system. Inquispro is able to scan any segment o f space and time an d tell us what happened. " "So, we wouldn't have to rely on witnesses and fading memories," I said. "That sound s like a big help." "Not onl y that , bu t Inquispr o know s al l th e substantiv e law . We would progra m i t s o tha t i t know s th e element s o f ever y caus e of action or crime." "So, i f Smit h accuse s Jone s o f negligence , fo r example , i n failin g to clear his sidewalks of snow, we could simply ask the computer t o apply the elements o f a negligence cause of action to what happene d when Smith slipped in front o f Jones's house the day of the accident." "Exactly," Rodrig o replied . "An d s o wit h al l th e othe r cause s of action in the law books. Inquispro could methodically go through all the cases filed, solving them in a fraction o f a second each." "This woul d obviousl y b e a grea t boo n t o ou r overworke d judi ciary," I said. "No t t o mentio n witnesse s an d jurors, none o f who m would be necessary. There wouldn't be much need for lawyers or law professors, either , althoug h I suppos e someon e woul d hav e t o pro gram the computer so it would know what substantive law to apply." "What else would you have to program the computer with, Profes sor?" Rodrigo looked at me quizzically. I hesitated a moment. "I t wouldn't nee d much civi l procedure." I was silent while Rodrigo looked at me expectantly . "Do yo u remembe r ou r recen t conversation , Professor , i n whic h we talke d abou t white-colla r an d blac k crime? 12 W e discusse d th e role o f discretio n an d lenienc y fo r th e sort s o f crime s tha t ar e com -

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mitted b y corporat e executives , suburba n youth , an d governmenta l figures." "Of course, " I said . "Everyon e know s wha t happens—th e inne r city black youth guilty of stealing hubcaps or selling a small amoun t of drugs is sent awa y for a long period while the well-regarded whit e figure receive s probatio n o r a ligh t sentence—eve n thoug h th e lat ter's crimes may be more serious, in both a monetary an d a physicalsafety sense. 13 And s o this i s the typ e of thin g your compute r coul d not tak e into account. " "I'm afrai d not, " Rodrig o replied . "An d so , afte r a while, societ y would rebel . We would insist o n programming sentencin g discretio n and plea bargaining laxity into th e computer . Otherwis e automobil e executives woul d receiv e lon g sentence s whe n on e o f thei r badl y designed car s kille d someone . Saving s an d loa n executive s woul d receive fifty-year sentences . And so on." The impac t o f wha t Rodrig o wa s sayin g san k i n o n me . "So , Rodrigo, you ar e saying that societ y would neve r tolerat e Inquispro . A genuinely fai r judiciar y tha t provide d equa l justice for white s an d blacks woul d b e intolerable. W e would insis t o n reprogramming In quispro so that i t was, basically, racist—had a bias in favor o f clean , neat, well-educate d whit e defendant s an d agains t blac k ones—an d in favor o f upper-class people of all colors and against poor ones." "We would. Otherwise, society wouldn't accep t it. " "And the moral you draw from thi s fiendish experiment , Rodrigo , is... ? " "As a societ y w e don' t reall y wan t empathy , o r anythin g tha t favors folks o f another kind. 14 Quite the contrary, we prefer preferen tial treatment—would neve r accept anything less than that, in fact. " "Which i s what your Inquispro example shows," I replied glumly . "Would you like another cup?" Rodrigo, wh o ha d bee n eyein g m y espress o machine , nodde d en thusiastically an d held ou t hi s cup . As he wa s stirrin g i n his condi ments, I asked : "An d I gathe r yo u thin k thi s lac k o f empath y i s somehow responsible for our current predicament? " "Thanks, Professor. Thi s is a good blend—a littl e milder than las t time. French roast?" I nodded yes, and my young friend continued : "I t is , in large part. You see it as clearly in our profession, law , as elsewhere. A colleague

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of mine, Kowalsky, and I were talking about this the other day. Even in thos e aspect s o f law , lik e clinica l scholarship , tha t yo u woul d think woul d be most empathic . Even some of the young stars admi t they sometime s mak e th e mistak e o f thinkin g the y kno w wha t th e client wants, and imagine that they are able to tell the client's stories as h e o r sh e woul d wan t the m told . Rea l empathy , i n th e sens e of putting the clien t first an d getting fully insid e the client's min d an d experience, is rare." "It sound s a s i f you'v e bee n thinkin g abou t thi s a goo d deal, " I said. "I suppose you have a theory for it all?" "Not s o muc h a theor y a s a way o f seein g wha t i s wrong . I'l l b e glad to tell you about it, if you have the time." "I do, although I don't wan t t o make you late for dinner . Is Giannina expecting you?"15 "She's attendin g a worksho p uptown . M y schedule' s m y own , although I ma y wan t t o borro w you r phon e later , i f it' s okay , an d give her a call. We usually talk around dinnertim e when on e of us is away doing something." "Of course, " I replied, pointing at the phone. "Anytime you want . I'll punch in the code, and give you privacy." "Thanks, Professor. Mayb e a little later. And no, I won't b e needing privacy. Giannina consider s you almost one of the family. " "I'm honored . Bu t tel l m e mor e abou t you r theor y o f empathy . And incidentally, i f you get hungry, le t m e know. I have snack foo d in th e refrigerator... " ( I indicated m y smal l offic e fridge , whic h I had recently purchase d an d o f which I was proud.) "O r w e coul d go out for a bite." "I appreciate the empathy," Rodrigo said, smiling. "Maybe a little later. I had a snack wit h som e friends jus t befor e comin g here . But, back t o ou r subject . Empath y i s highl y limited . No t onl y that , i t tends t o becom e rare r ove r time . Ye t w e thin k we—an d others — have much more empathy for the downtrodden than we, in fact, do. I even have a name for this. You've heard of Gramsci's concept of false consciousness?"16 "Of course, " I said, a little sharply . (Thes e impudent youn g pup s sometimes thin k u s old-timer s haven' t rea d anything! ) "Gramsc i coined the term to mean the kind of identification wit h the aggressor that a subjugate d peopl e ca n easil y develop . The y internaliz e th e

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perspectives, values, and points o f view o f the very people who con quered an d ar e oppressing them , thu s becoming unconsciou s agent s in their own oppression." 17 "And s o fals e consciousnes s i s a dange r fo r blacks , a t leas t i f w e aren't careful . Bu t hav e yo u eve r wondered , Professor , i f ther e i s anything comparable for whites?" "Comparable t o fals e consciousness , yo u mean? " I wasn' t sur e what Rodrigo was driving at. "I thin k ther e is , an d it' s empathy . O r rather , wha t I cal l fals e empathy, i n whic h a white believe s h e o r sh e i s identifyin g wit h a person o f color , bu t i n fac t i s doin g s o onl y i n a slight , superficia l way." "It is a kin d o f parallel, " I said . "Bu t I thin k I coul d us e a n ex ample." "Sure," Rodrig o replied . "Conside r th e earl y Settlemen t Hous e movement.18 Th e upper-clas s ladie s wh o worke d ther e professe d t o be highly concerne d ove r th e pligh t o f th e immigrant s wh o live d i n the houses . Bu t thei r sympathie s di d no t exten d t o learnin g thei r languages o r ways . Instead , the y taugh t the m persona l hygiene , housekeeping, English—ho w t o b e American. 19 Lawyer s mak e thi s mistake, too , eve n public interes t ones . Maybe especiall y publi c in terest ones." "I assum e yo u ar e referrin g t o Derric k Bell' s famou s article, " I asked. "The one about serving two masters?" 20 "That an d others . Bell points ou t tha t lawyer s working o n behalf of blac k group s woul d ofte n pursu e a strategy favore d b y th e litiga tion team—say , desegregate d schools—whe n wha t th e clien t reall y wanted wa s better schools , one s wit h mor e resources. 21 And, a s w e were discussin g before , eve n th e bes t clinician s mak e simila r mis takes." "So, yo u ar e saying, " I summarized , "tha t whe n a whit e empa thizes wit h a black, it' s alway s a white-black tha t h e o r sh e ha s i n mind—someone h e woul d b e lik e i f h e wer e black , bu t wit h hi s same wants, needs, perspectives and history, all white, of course." 22 "Right. False empathy, a sentimental, breast-beating kind, is common amon g whit e liberals , an d i s th e mirro r opposit e o f fals e con sciousness, Gramsci's notion. " "Nice and neat," I said. "Like the periodic table." "It's no t jus t elegant, " Rodrig o replied . "I t ha s rea l consequence s

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for civi l right s strategy . Wit h fals e consciousness , a person o f colo r identifies wit h and adopts the consciousness o f the oppressor, in thi s case a white . Wit h fals e empathy , a whit e pretend s t o understan d and sympathiz e wit h a black . Eac h i s counterfeit . Th e firs t type — the upward climber—is readily recognized and unmasked. These are the Grea t Gatsbys , an d ten d t o be objects o f ridicule by both white s and blacks. The second, false empathy , is likewise despised—bu t b y blacks. W e se e throug h it , kno w b y a kin d o f instinc t tha t thes e people won't be with u s when troubl e comes down. Derrick Bel l got it righ t i n hi s Serving Two Masters article . Gerald Lopez , i n Rebellious Lawyering, 13 did , too. But some of the top clinical theorists ar e getting i t wrong , bein g satisfie d wit h to o little . A recen t articl e shows ho w empath y i s limite d b y cognitiv e an d narrative-theor y barriers, including what the authors call the 'empathic fallacy.' " 2 4 "You mak e i t soun d a s thoug h th e proble m lie s mostl y o n th e white folks ' side . Don' t ou r peopl e sometime s commi t th e sam e mistakes?" 25 "They do , sometimes." Rodrig o conceded. "Althoug h I think les s frequently. Mos t white s lac k doubl e consciousness. 26 They have lit tle practice in seeing things two ways at once. We have a great deal." "Someone who is in the grip of false empathy has a shallow identification wit h the other," I said. "He or she walks on the surface, use s the wron g metaphor s an d comparisons . It' s a littl e bi t lik e fals e piety, lik e thos e folk s wh o g o to churc h o n Sunda y but don' t allo w themselves to be seized by real religion." "The mos t unsympatheti c thin g yo u ca n d o i s thin k yo u hav e empathized wit h thos e o f a radically differen t background . Yo u ca n easily end up hurting them. " "By doing the wrong thing—by no t supplyin g what the y need?" I asked. "Even wors e tha n that, " Rodrig o replied . "Ar e yo u familia r wit h the story of La Malinche?"27 I wa s silen t fo r a moment , strainin g t o remember . "Yo u mea n Hernan Cortes's translator? " "Yes," Rodrig o replied . " I wa s talkin g wit h on e o f m y Latin o students the other day about her. La Malinche was an Indian woma n who served as Cortes's translator. Sh e ended up helping him destro y her own people." 28 "I think our Mexican friends hav e a phrase for it. "

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"They do, " Rodrig o replied . "La traduction es traicion. Transla tion i s treason . On e wh o move s to o easil y bac k an d fort h betwee n different communitie s ca n en d u p betrayin g th e on e wit h th e leas t power, simpl y by making its secret s accessible to the other. Clinica l theorists, som e wit h th e mos t impeccabl y libera l credentials , hav e been accuse d o f somethin g simila r whe n the y spil l a client's storie s out on the pages of a law review for all to read." 29 I stoo d u p t o tur n of f th e coffe e pot , whic h ha d com e perilousl y close to boiling itself empty . "W e can come back t o this later if you like," Rodrig o interjected . "Ca n I interest yo u i n a bite o f dinner ? I think I'm hungry, after all. " "You certainl y can, " I replied, lookin g a t m y watch . "An d i f w e hurry, we can get to some good places before they fill up."

In Which Rodrigo Explains How Empathy, Like Knowledge, Reproduces Hierarchy and Why Genuine Sympathy Is in Short Supply We walke d briskl y dow n th e sidewal k i n fron t o f m y la w school . "Vietnamese okay? " I asked . "Thi s ne w plac e opene d a coupl e o f months ago . I haven't bee n there yet, but everyon e tells me the foo d is great and the service good." "Fine with me," Rodrigo replied, and a few minutes later we were seated i n a comfortabl e boot h i n th e clean , ligh t restaurant . While * waiting fo r th e waite r t o tak e ou r orders , I asked m y youn g friend , "Rodrigo—let m e see if I understand you. Are you saying that empa thy i s bad, per se, or that i t i s good, but tha t ther e is too little of th e real article to go around?" "In a way, both, " Rodrig o replied , lookin g u p a t th e waite r wh o had jus t brough t ou r menus . W e ordere d appetizer s an d beverage s (yet anothe r cu p o f coffe e fo r m y irrepressibl e friend , herba l te a fo r me) and continued our conversation : "Empathy i s dangerou s i f no t genuine , a s i t ofte n i s not . Lik e knowledge, i t ha s a power dimension. 30 Empath y reproduce s hierar chy. And the real kind, true empathy, is in extremely rare supply." "Tell me about how the false, or superficial, kin d reproduces hierarchy," I asked. I had just been reading about the sociology of knowl-

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edge, an d wa s intrigue d b y Rodrigo' s notio n tha t emotion s migh t reinforce th e status quo just as knowledge does. "We mentioned th e case of La Malinche a minute ago. A member of th e oppresse d grou p tell s th e oppresso r wha t i t want s t o know . The mor e powerfu l group the n use s th e informatio n t o destro y th e translator's group." "The translator is a dupe, in other words," I said. "It works the other way, as well," Rodrigo went on. "Some liberals write abou t horribl e condition s i n th e community , believin g tha t others wil l wan t t o remed y them . Thei r reader s dra w th e opposit e conclusion, however—tha t minoritie s ar e lazy, slothful , lik e t o liv e that way , and so on. 31 And there is a third way, in which th e libera l does not activel y harm th e member o f the weaker group, but merel y does hi m n o good . Th e Goo d Samarita n offer s th e wron g sor t o f rescue." "Like the Settlement Hous e ladies who taught Italian immigrant s how t o coo k an d ea t America n food , whe n the y ha d perfectly satis factory recipe s an d cuisines , o r taugh t immigran t mother s t o us e bottles and infant formul a instea d of breast feeding, whic h the y considered un-American, and not modern. " "It's what you were saying earlier," I interjected. "Whe n we visualize helpin g anothe r person , w e en d u p helpin g ourselve s i n th e form o f th e other . A white help s a black wh o is , in effec t white— a postulated recipien t wh o wil l lik e an d appreciat e wha t th e whit e would have wanted had the white been in exactly that situation. " "I'm sur e you'v e noticed , Professor , tha t peopl e almos t alway s give presents that they would like to receive themselves?" I remembered wit h a pang a time o r tw o whe n m y lat e wif e ha d scolded m e fo r doin g somethin g similar . "It' s somethin g o f a jok e with marrie d folks, " I said . "Th e husban d give s th e wif e a lu g wrench. She gives him two tickets to the opera, and so on." "So yo u se e wha t I mea n abou t th e wa y empath y reproduce s power relations, " Rodrig o said . "An d als o ho w i t sometime s ca n amount t o outright betrayal. " We fell silent while the waiter set down our appetizers, some sor t of skewere d chicke n fo r m y rail-thi n friend , a ho t an d sou r sou p for me. "You were also going to explain why it is in such shor t supply, " I

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said, ladling myself a spoonful o f the steaming concoction. "The real kind, I mean. An d I believe you wer e als o going to explai n wh y th e other kind is not merely harmless, but can kill." Rodrigo remove d hi s chicke n morsel s fro m th e skewer , neatl y speared one with his fork, an d began.

Rodrigo Explains Why Empathy (The Cross-Race Variety) Is in Short Supply "Empathy ough t t o benefit th e possessor, " Rodrig o began, "becaus e it enables him o r her t o make beneficial trades . If one has the abilit y to perceive what other s want , on e ca n offe r the m tha t an d get wha t one want s i n return . Ou r la w an d economic s friend s woul d sa y i t promotes marketplac e efficiency. 32 Empathi c peopl e ough t t o ge t ahead. Th e capacit y ough t t o confe r a n evolutionar y advantage , en abling it s possessor s no t merel y t o b e goo d parents , friends , an d lovers, but good traders, politicians, and marketers." "But you believe things are not working out that way? 71 asked. "No. For some reason, the evolutionary momentum seem s to have stopped, eve n reverse d itself , wit h respec t t o peopl e o f color . I'v e been trying to figure out why this is so." "No one can doubt that it is. Civil rights, affirmative action , Head Start, and dozens of other programs necessary to our people are under attack.33 Politicians and writers no longer even have to speak in code when castin g aspersion s o n us. 34 Blac k parent s believ e tha t thing s are now the worst they have been in twenty years, that their childre n will be denied jobs or educational opportunitie s because of discrimi nation, an d that thei r sons are at risk of harassment, o r worse, at th e hands o f th e polic e ever y tim e the y leav e th e house. 35 And I gather you think this is not just an aberration or part of an ordinary political cycle." "I wish it were," Rodrigo replied. "But the downturn in our fortunes is more serious than that . I think th e increasing bureaucratization of modern lif e ma y accoun t fo r part o f the decreas e in fellow-feeling. 36 Modern social relations are apt to be distant and perfunctory. W e run across fewer and fewer people of radically different clas s or race. A new branch of social psychology called norm theory 37 may supply part of the answer as well."

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I strained my memory. "Norm theory?" I asked. "Yes. Nor m theor y hold s tha t ou r reactio n t o anothe r perso n i n distress varies according to the normalcy or abnormalcy of his or her plight, i n ou r eyes . I f yo u se e a n upper-clas s whit e famil y bein g evicted fro m thei r nic e suburba n home , yo u fee l alarme d becaus e you kno w tha t sor t o f situatio n i s abnorma l fo r them . Yo u realiz e they mus t b e experiencing real distress. But if you se e starving Biafrans o n TV , yo u fee l les s empath y becaus e yo u kno w tha t i s thei r ordinary situation. Famines are common in that part of the world, so your hear t doe s no t g o ou t t o the m a s i t woul d i f you r neighbo r materialized on your doorstep not having eaten in eight days." "I've rea d o f experiment s dealin g wit h helpin g behavio r tha t ap pear to bear that out," I said. "A black woman drops a bag of groceries and no one stops to help. A white woman confederate doe s the same, and everyon e stops. 38 I ha d though t thes e experiment s manifeste d simple racism, bu t mayb e they illustrat e you r phenomenon a s well. Everyone assumes the black person has a rough road in life, so hardly anyone stops to help." "Experiments wit h strande d motorist s sho w th e sam e thing," 39 Rodrigo added. "Nor m theor y explain s why empath y decrease s ove r time, even though it would seem to benefit th e possessor. The poorer and more wretched black s become, the less white people will empa thize wit h them . The y wil l dismis s ou r crie s o f pain , thinkin g t o themselves that's our normal condition. " "And th e poorer an d more wretched w e become, th e les s we wil l have t o offe r i n trade . Empathy wit h u s will be useless. Who want s to trad e wit h a slave , who ha s nothin g t o offer ? Ther e i s n o reaso n for empathy with one who is permanently destitute. " "My point exactly, " Rodrig o continued . "Empath y i s least usefu l where w e nee d i t most . Whe n inequalit y i s dee p an d structural , empathy declines . It's a downward spiral . Empathy would wor k i n a just world, one in which everyone's experience or access to resources were roughly the same. But we don't live in a world like that. " "Is there any solution, any hope?" I asked. "The only one I see is to show that ou r people have something t o offer whites . We were talkin g abou t thi s th e firs t tim e w e met. 40 If one ca n convinc e elit e white s tha t black s hav e somethin g t o offer , our treatmen t wil l shif t overnight , a s i t di d i n wartime. 41 Th e pre vailing narrative s an d myth s wil l chang e magicall y t o facilitat e

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trades an d exchanges , services , an d s o o n tha t th e dominan t grou p need. None of this will take place on a conscious level." "The trouble is that many of them seem ready to write us off. Th e Republicans no w realiz e the y don' t nee d ou r votes. They ca n coun t on backlash voters , angry white males, 42 while the Democrats see m not t o want us, either. 43 And if I understand your argument, ou r fe w remaining libera l friends can' t be counted o n because their empath y is shallow . The y thin k the y kno w wha t w e need , bu t don't . The y visualize themselve s i n ou r place s an d as k wha t they , themselves , would want. " "False empath y i s wors e tha n indifference , Professor . I t encour ages the possessor to believe he is beyond reproach. It's like a certain type of religiosity. If you believe you are saved, you can easily com e to believe that you can do no wrong. Because you believe in God, you will believe you are God, or at least that you are chummy with Him . He's o n your side—yo u understan d eac h other . Onc e you reach thi s point, yo u ca n d o n o evil , a s yo u are God—o r a t leas t Hi s mes senger." "You wil l the n thin k yo u ar e being extremel y empathic—a s th e Spanish conquistadore s did—becaus e yo u ar e actin g o n behal f o f God i n th e othe r person. 44 No t wha t tha t othe r perso n is , but wha t he o r she might be . The othe r perso n ma y not believ e he or sh e ha s that Go d in him or her. But you will know better. Is that your general idea?" I asked. "Yes," Rodrigo said. "In fact, I' m reminded that the helping experiments w e wer e talkin g abou t showe d tha t religiou s peopl e helpe d out eve n les s tha n nonbelievers. 45 Thi s wa s particularl y tru e i f th e experiment was staged just as they were coming from church." 46 "So ideology of all sorts decreases empathy," I summarized. "Th e more politicall y fracture d ou r natio n becomes , th e les s importan t will see m it s commitmen t t o racia l justic e an d hel p fo r th e poor . Religiosity als o decrease s empathy , al l thing s bein g equal , a s doe s bureaucracy. And the conditions of modern life add a fourth element : as the gap in earning s and family wealt h betwee n black s and white s grows wider , ther e i s les s t o trade. 47 Wit h th e decrease d nee d t o understand an d empathiz e wit h th e other , empath y naturall y de creases. And the poorer those others get, the more norm theory clicks in. Their misery seems normal, so why get excited when we see they are hurting?"

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"And don't forget th e decreasing pie. The slowing of growth in th e U.S. economy and the greater competition we are facing from foreig n markets mea n tha t ther e i s les s empath y t o g o around/ ' Rodrig o added. "Socioeconomi c competitio n increase s racism. 48 Bu t i t als o decreases empathy . A s one' s ow n well-bein g an d securit y decrease , one look s t o onesel f an d one' s friends . Expandin g market s giv e a reason for increased empathy: one is in a position t o make trades, so understanding othe r peopl e confer s a n advantage . Ba d time s caus e you to hunker down . During human evolution , th e main function o f empathy wa s t o facilitat e bondin g an d solidarity , s o tha t collectivi ties could form. 49 But with racism—a relatively new phenomenon — the attitude promotes white bonding, white solidarity . This benefit s elite whites , sinc e i t assure s tha t strugglin g worker s won' t tur n against them. 50 An d it console s workers. Even though thei r shar e of the pi e get s smalle r an d smaller , the y ca n sa y t o themselve s tha t they're at least better off than the blacks." 51 "Six factors tha t augur little good for our people," I said. "A pretty gloomy scenario, coming from someon e as young and upbeat a s you. I hope you have a solution. Does it include law?" "Oh, here' s ou r waiter, " Rodrig o interjected. "Ca n I tell yo u i n a minute?" W e both examine d th e men u i n silence , whil e th e waite r waited patiently. "I'll have number twenty-seven," Rodrig o said. "And I'l l tak e thirteen . I t doesn' t hav e MSG , doe s it?" "Doctor' s orders," I added to Rodrigo, who shot back a sympathetic look . The waite r shoo k hi s hea d no , departe d wit h ou r orders , an d w e continued as follows.

Rodrigo Explains Why Law Is Not the Solution, and Why We Need a Due Process of Legal Storytelling "I d o hav e a solution, " Rodrig o replied , "bu t unfortunatel y i t doe s not includ e law . At first, I thought i t might . Afte r all , on e doe s no t need empath y t o fil e a lawsuit. A judge doe s not nee d i t t o rul e o n technical motions, or see whether a complaint satisfie s th e element s of a statutor y caus e o f action . Man y o f thes e act s ar e mechanical , requiring no large amount o f judgment. In fact, som e race-crits hav e

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advocated th e formalit y o f th e cour t settin g a s a positive advantag e over nonformal disput e resolution, suc h a s mediation, fo r case s presenting an imbalance of power—as mos t civi l rights cases do. 52 Unfortunately, I think litigation is not a very promising avenue of relief for society's most wretched, most disadvantaged classes." "We talked in a general way about som e of these things before," I recalled. " I think i t wa s when we were discussin g that proble m yo u had over the LL.M. skit when you were a graduate student." 53 "Your memor y i s good , Professor . W e ar e no t th e onl y one s t o question fait h i n la w a s a n instrumen t o f social reform . Ther e ar e many others , bot h o n th e lef t an d o n th e right. 54 Bu t som e thin k things would be better if we only had more empathic judges, or ones with wide r experience. 55 O r i f lawyer s learne d t o tel l better , mor e vivid, stories in their pleadings, for example." 56 "But yo u thin k thi s woul d no t hel p a t all? " I said, a little dubi ously. "Less than w e might hope, " Rodrigo replied. "La w is structurall y biased against any display of empathy. " "Is that because of what your Inquispro example shows?" I asked. "Namely, tha t w e do not reall y want la w to be uniform an d nonracist, treatin g everyon e alike . We want i t t o promote clas s advantage . If it didn't we would change it back." "That's par t o f it, " Rodrig o replied . "Bu t there' s more . Eve n per fectly nonracis t judges , one s lik e Inquispro , wh o trea t black s an d whites absolutely alike, would end up doing very little good. Incidentally, I think thi s is even more true for lawyers, but we'l l com e back to that later. Let's focus on law at the more systemic level." "Go ahead. I'm all ears," I said. "Why can't law redress the injurie s of society' s mos t need y an d oppressed ? Wha t abou t time s lik e th e sixties? Then , court s wer e i n th e forefron t o f th e socia l revolution , handing dow n decree s protectin g civi l right s protesters , desegregat ing schools and lunch counters, requiring due process in school disciplinary cases, and so on." "True," Rodrig o conceded. "Bu t tha t was , unfortunately, a n aber ration. Most of the time courts are no more kindly disposed to us and our causes than is any other group, say grocers or accountants—eve n less, in fact. " "And I assume you have a theory for why this is so?"

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"I do—actually a group of explanations , correspondin g t o th e different role s of judges, lawyers, and litigation as a whole." "I'd love to hear them/' I said, sitting back expectantly .

Rodrigo Explains Why Litigants Cannot Command the Empathy Their Situations Ordinarily Would—There Is No Due Process of Storytelling The Litigant s Themselve s "Let's tak e th e litigant s first . Sa y yo u ar e a plaintif f wh o ha s suffered a civil rights injury, maybe a black undergraduate or member of a family wh o ha s bee n injure d b y hate speech . Yo u file suit , bu t soon find out that it is very hard to tell your story in court. The legal system require s tha t yo u tel l a different narrativ e from th e on e tha t happened. Law slices up your narrative into little bits, into unfamil iar pieces. The pleading requires a short and plain statement, divide d into paragraphs. It turns out tha t th e law doe s contain maste r narra tives tha t correspon d fairl y closel y t o commercia l grievances , t o what industrialist s wan t t o sa y abou t eac h othe r i n antitrus t case s and so on. But it contains few narratives that see m written for us, no pleading for m fo r 'Yo u wer e unfair. 7 Thus , whe n th e plaintif f start s to tell her story, for exampl e that her husband beat her for ten years, we interrupt and say, 'Don't tell us that story, tell us about imminen t threats o f deat h o r violent injury . Wha t wa s your husban d abou t t o do t o yo u whe n yo u kille d him?' 57 I f i t turn s ou t th e woma n ha s nothing to tell of this kind of story, we tell her to keep quiet. She had no story after all. " "So th e la w require s he r t o tel l a stylize d stor y tha t migh t o r might not correspond to the injury sh e sustained. " "Sometimes it' s eve n wors e tha n that, " Rodrig o continued . "Sometimes th e la w require s yo u t o tel l th e othe r person' s story — the perpetrator's , no t you r own . Fo r example , i n a civil right s com plaint, yo u wil l en d u p havin g t o tel l th e judg e an d cour t tha t th e other side acted intentionally, had a certain type of motivation. " "That's Washington v. Davis/' 58 I interjected. "Whic h hold s tha t in man y civi l right s case s th e plaintif f ha s t o prov e tha t th e defen -

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dant's conduc t wa s intentionall y discriminatory , no t merel y tha t i t had a differential impac t on persons like oneself." "Exactly. And not only that. The plaintiff ha s to prove tight chain s of causation between what the defendant di d and his or her injury." 59 "And probably tha t th e defendan t ha d no legitimate business rea son for denying the plaintiff a job or promotion,"60 1 added. "Half th e plaintiff's cas e does seem to concern the defendant, no t the plaintiff , who, after all , is the one who suffered th e injury. " "Exactly. Conside r th e hate-speec h cas e w e mentione d a minut e ago. Th e defendant , let' s say , ha s burne d a cros s o n th e family' s lawn.61 O r a grou p o f fraternit y kid s shouts , 'Nigger , g o bac k t o Africa; yo u don' t belon g o n thi s campus, ' t o a n eighteen-year-ol d black undergraduate. 62 If you take thi s case to court, you'll find tha t the defendan t immediatel y turn s i t int o a Firs t Amendmen t issue . The issue now will be whether he or she had a right to burn the cross or yel l th e epithet . You , wh o wer e merel y tryin g t o slee p i n you r room a t home , o r walking hom e fro m th e librar y lat e a t night , wil l find yoursel f o n th e defensive , depicte d a s someone who wa s tryin g to tak e awa y th e preciou s free-speec h right s o f th e skinhea d o r bigot." 63 "Hmm," I said, " I se e what yo u mea n b y the narrative s al l bein g against you . In fact , I was jus t re-readin g Justic e Scalia' s opinio n i n the Minneapoli s cross-burnin g cas e th e othe r day . H e hardl y men tions th e famil y a t all . The y wer e a n abstraction , almos t entirel y missing fro m th e opinion , whic h i s al l abou t speec h categorie s an d the danger s o f censorship—o f wha t h e call s viewpoin t discrimina tion." 64 "A more perfect iron y could not be imagined," Rodrigo continued . "The Jones family, wh o awoke to find a cross burning on their lawn , and th e cit y which intervene d o n thei r behalf—considere d guilt y of discrimination!" I pause d fo r a momen t whil e th e waite r se t dow n ou r food , a vegetarian sti r fry for me and some sort of chicken in curry sauce for Rodrigo. "Looks good," Rodrigo said. "Thanks." The waiter departed . "So," I summarized , "th e plaintif f ofte n doe s no t ge t t o tel l he r story. And even when she does, it's rarely the story she would like to tell an d think s o f mos t naturall y a s what happened . Sh e cannot 'g o back t o the beginning.' Sh e often finds tha t thing s sh e thought vita l to th e clai m ar e irrelevant an d canno t b e told. The cour t interrupts ,

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makes her tell her story in little slices, in response to direct examination. The othe r sid e gets t o objec t ever y thirt y seconds . Most o f th e 'material elements ' concer n th e defendan t an d wha t h e o r sh e did . It's onl y when yo u get to th e end—damages—tha t yo u really get t o tell abou t yoursel f an d wha t happene d t o you . Th e la w make s yo u take what Alan Freeman calls the perpetrator perspective. " "Sounds dire," I said. "Bu t maybe the solution i s to litigate more, not less—t o ge t th e la w t o recogniz e ne w cause s o f action . Then , new narrative s wil l b e capabl e o f bein g told , a s happene d wit h th e tort o f intentiona l inflictio n o f emotiona l distress , fo r example . Or , in ou r time , sexua l harassmen t o f wome n i n th e workplace . Befor e Catharine MacKinnon' s path-breakin g work , wome n coul d no t tel l those stories in court . Today the y can . Maybe our people can do th e same." "I doub t it, " Rodrig o replie d wit h uncharacteristi c gloominess . "The courts ' an d th e country' s moo d i s al l i n th e othe r direction . American societ y i s impatien t wit h wha t the y cal l activis t judges . We believe the rights revolution has gone too far. Affirmative actio n is unde r attack . Al l th e dominan t narrative s hav e shifted . I n th e sixties Africa n American s wer e long-sufferin g victim s o r righteou s warriors. Then , th e image s change d t o thos e o f terrifyin g gangster s and Black Power advocates. In the last decade , we've seen the Willie Hortons an d Cadillac-ownin g laz y welfare cheat , th e affirmativ e ac tion offic e worke r who won't work , 'know s her rights,' and blocks a spot that should go to a more deserving white." "So," I said, returning to Rodrigo's previous example, "in the hatespeech debate , th e narrativ e o f har m i s give n shor t shrift—eve n though quit e provable. 65 Court s an d commentator s quickl y substi tute th e wholl y unprove n narrativ e o f censorship , a s thoug h ever y campus tha t enact s a mil d hate-speec h rul e wil l immediatel y tur n into a n Orwellia n nightmar e wit h Bi g Brother lookin g ove r every one's shoulder. 66 Thi s i s quit e speculative , an d i n m y opinio n ex tremely unlikely . O r tak e anothe r narrative , th e chillin g effec t tha t speakers ar e sai d t o suffe r i f an y speech-limitin g cod e i s pu t int o place. Set that alongside the terror, demoralization, an d high dropout rate tha t ar e demonstrabl y associate d wit h campu s hat e speech , ac cording t o dozen s o f studies . Whic h on e i s mor e certai n t o occur ? One finds tha t al l the prevailing narratives have to do with enablin g elite an d not-so-elit e white s t o d o wha t the y ar e accustome d t o

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doing, and then defendin g i t i n court. They have all these narrative s going for them—Big Brother, the state as censor, the terrified speake r just waiting to be chilled, an d the thin-skinned hypersensitiv e blac k just waiting to run to the authorities instead of shrugging it off. " Our Treatmen t o f Witnesse s "That's no t all, " Rodrigo added. "Not onl y d o we give plaintiffs a hard time, make it difficult fo r them to tell their story. Consider how we treat witnesses." "You're goin g t o sa y rudely , I bet. I'v e jus t bee n readin g abou t a famous crimina l tria l wher e ever y witness go t rake d ove r th e coals , left th e courtroom feeling impugned and maligned, even though the y were just trying to do their job—namely tell what they saw. " "Exactly," Rodrigo replied. "Let's say the plaintiff trie s to bring in some friends t o help him tel l his or her story . These are people wh o know somethin g abou t th e even t tha t gav e rise t o th e lawsuit . Th e witness soo n learn s tha t i n ou r lega l cultur e i t i s oka y t o trea t wit nesses wit h suspicio n an d contempt . Th e othe r side get s t o badge r them, impl y the y migh t b e lying , insinuat e al l sort s o f unsavor y motives." 67 "Yet we insist tha t everyon e trea t th e lawyers and judge with th e greatest respect . Anyon e wh o stoo d u p i n cour t an d sai d tha t th e prosecutor o r judg e migh t b e lyin g o r biase d woul d b e treate d a s having done something scandalous. Yet we do this sort of thing with witnesses routinely. " "And with women who bring charges of rape," Rodrigo added. "In the courtroom, certai n types of emotional display will get you a contemp t citation ; other s not . Judge s ca n shout , interrupt , sho w exasperation o r disbelief. So can a defense lawye r questionin g a witness. Bu t th e plaintif f an d hi s o r he r attorne y ar e expecte d t o b e models of decorum. " "Emotional rule s ar e th e undersid e o f powe r an d ideology, " Ro drigo said . "It' s oka y fo r a n empowere d actor , say , you r boss , t o b e angry a t you . Bu t yo u ma y no t sho w ange r a t you r boss. 68 It' s th e same way in court. The interaction you see there always has a power imbalance visibl e i n wh o speak s first, wh o interrupts , wh o get s t o initiate an d terminat e interaction , wh o get s t o paraphras e an d su m up at the end. "

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"It's true, " I said , "tha t plaintiff s an d witnesse s find thei r role s limited i n cour t b y rules o f evidence , relevancy , cross-examination , and s o on . Bu t that' s th e wa y thing s ar e i n a n adversar y system — there hav e t o b e som e rules , o r els e i t woul d b e a free-for-al l an d things woul d b e eve n wors e fo r wha t yo u cal l disempowere d liti gants. Aren't you forgetting tha t ever y plaintiff ha s the perfect coun terbalance t o al l thi s powe r an d cumbersom e machiner y tha t i s deployed agains t hi m i n court , namel y a n attorney , a gladiator wh o i s trained to negotiate the maze of court rules and who is professionall y and ethically bound to represent th e client t o the best o f his ability ? Doesn't th e lawyer cancel all or most of that power imbalance out?" The Lawye r "I wish i t wer e tha t way, " Rodrig o sai d wit h a sigh . "Bu t a lawyer's training and culture discourage him or her from challengin g th e narrative structure s w e jus t mentioned . Lawyer s wh o spok e up , o r mimicked th e emotiona l ton e o f th e judge , would b e sanctione d o r disbarred.69 Lawyer s canno t depar t muc h fro m th e stylized , desic cated storie s spelle d ou t i n th e rule s o f pleading . Gabe l an d Harri s proposed differen t standard s fo r lawyer s representin g politica l cli ents. Bu t fe w followe d thei r suggestions . Th e clinica l literatur e shows tha t eve n famou s radica l lawyer s mis s opportunitie s t o tel l their clients ' stories , instea d settlin g fo r th e dry , cautiou s ton e se t out i n th e pleadin g book s an d encourage d b y th e prevailin g ethos , the bland decorousness of the courtroom." 70 "Even publi c interes t lawyer s ar e pron e t o pu t th e client' s stor y second t o th e lawyer' s own . I' m reminde d o f th e articl e yo u men tioned by Derrick Bell, in which he points out how civil rights attor neys en d u p litigatin g on e thin g whe n thei r client s reall y wan t an other." 71 "It's not necessaril y tha t th e lawye r has a superficial understand ing o f th e poor, blac k client . Rather , it' s tha t h e believes h e know s best. He believes he has to collaborate with the court in retelling th e client's story so that it comes out in the sanitized, approve d version. And sinc e mos t lawyer s ar e white, male , an d middle-class , thi s ca n be a serious problem . N o lawyer , o f course—white , black , male , o r female—likes t o b e demurre d ou t o r hav e a n evidentiar y objectio n sustained agains t hi m o r her . Bu t i f th e lawyer' s experience , back -

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ground, an d histor y ar e radicall y differen t fro m thos e o f th e client , the lawye r ca n easil y dismis s th e client' s rea l objectiv e an d substi tute his own. Lawyers may know the client's misery, understand ful l well th e stor y h e o r sh e want s an d need s t o tell , bu t stil l en d u p putting the law story, the familiar one , the one he was trained to tell, first."72 I remembered somethin g I had just read. "Rodrigo, you have some empirical evidence on your side. I was just reading Paul Finkelman' s review o f a history o f blac k lawyer s i n America. 73 Finkelma n com mented ho w fe w lawyers , blac k o r white , wer e i n th e forefron t o f the civi l right s movement . Al l th e grea t leader s wer e nonlawyers — Martin Luthe r King , W. E. B. DuBois, Frederic k Douglass , Malcol m X, Jesse Jackson. They are historians, or teachers, or ministers—ver y few lawyers . Do you thin k tha t i s because a people in trouble kno w instinctively tha t a lawyer is not the one to tell its story? Or is it tha t lawyers sh y awa y fro m leadershi p roles , preferring t o remai n i n th e background, conductin g backroo m negotiations , filin g fo r injunc tions, doin g th e nitty-gritt y wor k tha t allow s th e rea l leader s t o b e effective, t o stay out of jail, and so on?" "It ma y b e both, " Rodrig o replied . "Som e lawyer s d o propos e useful things . Thurgoo d Marshal l an d th e othe r lawyer s i n th e NAACP Lega l Defens e Fun d certainl y did , whic h Finkelma n o f course acknowledges. 74 But the further remove d a lawyer is by experience an d background fro m th e group represented, th e less effectiv e he or she seems to be. No white male middle-class lawyer advocate d attention t o racia l slur s an d hat e speec h unti l a minorit y lawye r did.75 N o middle-clas s whit e mal e propose d t o eliminat e sexual history testimon y i n rape cases or proposed a new cause of action fo r sexual harassmen t i n th e workplac e unti l Catharin e MacKinno n did.76 No white male—except tha t genius, Alan Freeman—propose d that civi l right s law , tha t jewe l i n th e crow n o f ou r jurisprudence , systematically disadvantage s it s ver y beneficiaries, minorities. 77 N o straight whit e male—excep t Joshu a Dressier—champione d ga y rights an d oppose d slur s an d gay-bashin g unti l ver y recently. 78 Th e Supreme Cour t sa w n o seriou s proble m wit h capita l punishmen t that fall s disproportionatel y o n minorities. 79 An d s o on . Th e basi c problem is the legal narrative: One simply cannot tell stories of many kinds of injustice throug h the law. And if one's training is in the law, one has virtually de-traine d onesel f t o represent society' s outcasts. It

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takes a superhuma n effor t t o b e a n empathi c huma n being . T o b e both a lawyer and an empathic human is practically an impossibility. Our revie w o f civi l right s histor y show s tha t th e lega l narrativ e i s less effectiv e tha n tha t o f practicall y an y othe r profession , suc h a s teaching, the ministry—or a grocer, for that matter/ ' "And, a s w e mentione d earlier , th e rule s o f courtroo m etiquett e require that on e not us e emotional discourse , tha t on e speak withi n the legal paradigm, adhere to rules of evidence that carve one's narrative into little pieces , destroying its momentu m an d integrity. Law yers ar e traine d t o observ e thes e rule s unti l the y becom e secon d nature. We are trained no t t o empathiz e bu t t o be technocrats, con centrating o n th e small , no t th e big , picture . W e focus o n motion s and pleadings, not stories , much les s thing s lik e injustice, love , an d compassion. "We d o allo w victim-impac t statements/' 80 Rodrig o interjected . "That's one kind of new story we do like." "We find i t eas y t o empathiz e wit h th e victim s o f crime, " I said. "Particularly if they are middle-class people like us." "Even better , the y ar e no t require d t o testif y throug h a lawyer . They ca n spea k fo r themselves . Whe n w e wan t someon e t o spea k really effectively—tha t is , t o hel p societ y condem n th e crimina l even more fully—we le t them spea k uninterrupted. W e could do the same for civil rights plaintiffs, bu t don't. " "But, Rodrigo, " I interjected, "ther e i s a whole ne w literatur e o n effective lawyering. 81 It i s being written b y clinical faculty , som e a t the best schools . Writers like Menkel-Meadow, 82 Lopez, 83 Cunningham,84 and Alfieri85—others a s well—are writing about client narratives. The y ar e writin g abou t th e nee d t o liste n mor e carefully , t o translate better, t o ge t inside ou r clients ' heads. 86 They ar e warnin g about the dangers Derrick Bell first raised, of putting the law and th e lawyer's objective first. D o you not thin k things are changing for th e better?" "I would lik e t o thin k so, " Rodrigo replied. "Bu t I' m skeptical . A lawyer canno t easil y escap e th e confine s o f hi s o r he r background , culture, an d professiona l discipline . Herb Eastma n show s tha t eve n top lawyers , lik e Willia m Kunstler , tel l dull , lifeless , stereotype d stories, a t leas t a t times. 87 An d Anthon y Alfieri , on e o f th e bes t o f the youn g clinicians , confesse s tha t h e ofte n fall s shor t i n empow ering hi s client s an d lettin g thei r voice s an d personalitie s shin e

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through.88 H e goe s on a t grea t lengt h abou t ho w h e erase d th e pai n and identity of one of his clients, a certain Mrs. Fields."89 "I read that article/ ' I replied. "An d even though his mea culpa is drawn ou t ove r severa l pages , I kept wondering : Di d h e eve r reall y understand Mrs. Fields? He recounts how his client, a Social Security applicant wh o sought relief becaus e she lost her job due to an inability t o read, finall y brok e dow n an d wept. Th e woman wa s undoubt edly frustrated—th e judg e wa s refusin g t o believ e sh e coul d no t read enoug h t o hol d a job—an d Alfier i wa s force d t o demonstrat e graphically t o the court, by holding up various signs and charts, tha t she could not. But Alfieri read more into it than that; he believed th e woman wa s frustrated a t being unable t o tell her stor y o f segregate d classrooms and growing up in a house without man y books." 90 "I se e wha t yo u mean, " Rodrig o said . "Alfieri , althoug h a fine lawyer and progressive scholar, was reacting to her life experience as though h e ha d live d throug h it ; i n hi s imaginatio n h e wa s a black white. And for him, a n educated, sensitiv e person, growin g up in a n environment withou t book s an d relegate d t o inferio r school s woul d have bee n intolerable . Mrs . Fields , though , migh t hav e bee n quit e happy with he r all-black schools , as Bell reminds us. 91 And whethe r she experienced th e lack of books in her parents' house as a deprivation, even we have no way of knowing. She did experience the cutof f of Socia l Securit y benefit s a s a hars h deprivation—tha t w e know . The autho r seem s almos t a s concerned wit h wher e he fi t i n a s wit h his client's own expressed desires—namely fo r Social Security benefits." "Progressive lawyer s ma y go on and on about thei r consciences 92 not becaus e the y wan t empath y fo r th e clients , bu t fo r themselves . They los e al l thei r cases . Their client s sometime s li e t o them . Th e judges are rude. Ofte n thei r client s wan t X when the y (th e lawyers ) want Y—th e gran d declaratio n o f principle—a s w e mentione d before.93 Libera l empathy is often o f just thi s misdirected o r solipsisti c sort." "The sor t tha t i s th e opposit e o f Gramsci' s fals e consciousness , you mean?" "Exactly." "Would you gentlemen lik e some dessert?" The waiter had materialized a t ou r table sid e while we were talking. I looked a t Rodrigo , who shrugged back, I thought a little eagerly.

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"Could we see your dessert tray?" I asked. The waiter disappeared , taking ou r empt y dinne r plate s wit h him . "Bu t yo u mentione d tha t there is another way in which litigation prevents people from tellin g their stories." The Cour t Syste m "Oh, yes," Rodrigo replied. "Law disaggregates and atomizes, even though man y grievance s hav e a grou p dimension . Thi s leave s th e litigant lonel y and withou t allies . It encourage s hi m o r her t o thin k about his own grievance, not those of the group." "I can think of a few ways it does this," I chimed in. "Doctrines of standing an d rea l part y i n interes t limi t wh o ca n su e o r b e sued. 94 While joinder is possible to a degree, and class actions are possible in some situations . . . " "Although w e both kno w th e man y way s th e federal court s hav e been cuttin g bac k o n th e clas s actio n vehicl e i n recen t years, " Rodrigo interjected , "b y insistin g o n satisfactio n o f th e minimu m amount i n controvers y fo r ever y plaintiff, 95 fo r example , an d b y requiring notic e t o al l clas s member s wh o ar e identifiabl e throug h reasonable effort." 96 "True. But there are other features tha t render courts unattractiv e to social reformers. Court s ar e bound by precedent, whic h ma y con tain bad stories. If the only narrative the law recognizes is a bad one— one tha t require s tha t yo u demea n yoursel f o r tel l you r stor y i n a strange and contorted way, or jump through very high hoops even t o be heard at all—you will not choose to tell your story there very often. Judges' experiences an d life perspective s ar e those o f a certain class . There ar e very few Africa n American , lesbian , o r disabled judge s o r ones from a working-class background. Since their experience is limited, judges may be ill-equipped to understand your plea. Rules relating to ripeness, mootness, and standing mean that the court can only consider th e cas e before it , no t th e broad stor y o f dashe d hope s an d centuries-long mistreatment tha t afflict s a n entir e people and form s the historical and cultural background of your complaint. And the decree, even if favorable, will fix only your story, not that of others—and especially so after recent cutbacks in res judicata law and the class action vehicle. 97 In short, courts are ill-equipped t o hear and act on the stories they need most urgently to hear."

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"Another wa y of putting it, " Rodrig o said, summin g up, "i s wha t I'm thinkin g o f callin g th e reconstructive paradox. It' s a n aspec t of what yo u sai d jus t now . I t begin s b y observin g tha t th e greate r th e evil—say, black or female subjugation—th e mor e entrenched i t wil l be. The more entrenched an y evil, the more massive the social effor t that wil l be required t o dislodge it. An entrenched socia l evil will be invisible t o many—mayb e most—i n th e culture , simpl y becaus e i t is embedded , entrenched , an d ordinary-seeming . Th e massiv e social effort wil l inevitably collide with other social values, settled expectations, th e way thing s are , and s o on. It will entai l dislocations , ne w priorities, an d spendin g shifts . Thes e latter efforts , b y contrast , wil l be highly visible, will spar k resistance an d opposition. On e is apt t o be characterized a s 'Big Brother,' a fascist, a reverse racist, and so on. Resistance the n wil l fee l principle d t o th e resister—becaus e th e other side will appea r t o be sacrificin g rea l liberty , rea l mone y fo r a nebulous and dubious social goal, like helping blacks." "Reconstruction an d reform , then, " I said gloomily , "wil l alway s seem unprincipled , premature , wrong , an d wil l spar k resistance — until on e hundred years later when consciousnes s changes , at whic h time w e wil l loo k bac k an d wonde r ho w w e possibl y coul d hav e resisted that. " "Oh," Rodrigo exclaimed. "Here' s the dessert tray! "

In Which Rodrigo Offers a Solution to the FalseEmpathy Dilemma, and Suggests Two Roles for White Reformers and Fellow Travelers We picked out ou r desserts, which the waiter quickly brought. Afte r a fe w moment s i n whic h w e tacitl y agree d t o ea t i n silenc e whil e enjoying ou r confections— a cream y Frenc h Vietnames e pastr y o f some sort for Rodrigo, sherbet for me—I looked up. "I hope that m y real desser t wil l b e tha t yo u tel l m e wha t you r solutio n i s t o th e predicament w e fin d ourselve s in . Reformer s ge t littl e i f an y rea l empathy in courts, or indeed anywhere, and can count on no one but themselves t o clim b ou t o f povert y an d despair . I f w e can' t loo k t o our liberal friends, t o whom can we turn?" "Empathy woul d wor k i n a jus t world , on e i n whic h everyone' s

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experience an d socia l histories wer e roughly th e same—tha t is , no t marked by radical inequality. In such a world, we would have thing s to trade. There would b e reasons for needin g t o get t o know others , for understandin g wha t the y fee l ari d need . But , a s w e mentione d earlier, we don't live in such a world." "And sinc e we don't," I said, "wha t shoul d w e do ? We can't giv e up, can't jus t sit around bemoaning our plight or plotting revolution . There mus t b e a strategy , a se t o f procedure s fo r operatin g i n a n imperfect world. " "I d o have a plan," Rodrig o said , drawin g a dee p breath. "I t con tains thre e provisions . It' s al l base d o n th e ide a tha t fals e empath y is wors e tha n non e a t all , wors e tha n indifference . I t make s yo u overconfident, s o that yo u ca n easily harm th e intended beneficiary . You ar e ap t t o b e paternalistic , thinkin g yo u kno w wha t th e othe r really want s o r needs . Yo u ca n easil y substitut e you r ow n goa l fo r his. You visualize wha t yo u woul d wan t i f yo u were he , when you r experiences an d needs are radically different . Yo u can en d up think ing tha t rac e is n o differen t fro m class—tha t black s ar e just white s who happe n no t t o hav e an y mone y righ t now . Yo u ca n thin k tha t middle-class black s o r ones wit h professiona l degree s have i t made , need n o furthe r attention , whe n thei r situatio n i s i n som e respect s worse than tha t o f the black who lives in an all-black, working-clas s neighborhood."98 "Your solution, Rodrigo, your solution," I urged. "Oh—I thin k th e solutio n lie s i n thre e parts . The first i s essen tially to give up on, to foreswear th e very idea of, empath y as any sort of primary tool for our advancement. We must realize that persons of radically differen t backgroun d an d rac e canno t b e mad e vicariousl y to identif y wit h u s t o an y significan t extent . Thei r help , i f any , i s likely t o be misguided, paternalistic , mistaken , an d unhelpful. Thi s is especiall y s o i f the y ar e lawyer s an d othe r cour t officers . Lega l empathy i s even rarer an d less reliable than othe r kinds . Law carves up you r story , serve s i t u p t o a n uncomprehendin g judge , atomize s your claim , an d spark s rea l resistanc e whe n i t trie s t o d o some thing—as i t doe s ever y centur y o r so . W e shoul d giv e u p o n th e entire route." "And then what?" "The nex t step—afte r abandonin g hop e i n libera l empath y an d

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cross-race, cross-class identification—is t o urge one of two strategies that I think will work. Would you like to hear them? "Yes, yes," I said impatiently. Rodrigo's Firs t Pla n for Whites : The Rac e Traitor Ide a "The firs t rol e fo r whit e folk s wh o woul d lik e t o b e helpfu l i s what Noe l Ignatiev and John Garvey call the race traitor." Have you heard of the idea?" I strained t o remember. " I think I have. Don't the y hav e a magazine by that title? " "Yes," Rodrigo replied. "I brought you a copy. It's in that envelop e back in your office. Bu t I see you know abou t i t already . Just when I think I have a n ide a o r approach tha t wil l surpris e you , i t turn s ou t you know about it already. It's kind of discouraging talking with you, Professor." "Stop the flattery. You'r e miles ahead of me in most things . I just have a little mor e experience . Tel l m e ho w yo u se e th e rac e traito r idea applying to our empathy dilemma. " "White people who want t o help can become traitors to the whit e race. As Ignatiev an d Garve y put it , 'Treaso n t o whiteness i s loyalt y to humanity.' 100 Fo r example , i f a whit e perso n i s i n a group o f whites and one of them tells a racist joke or story, the white can look up in surprise and say: 'Oh, you must hav e told that stor y in front of me because you assumed I am white. I am not. I'm black . I just loo k white, bu t m y ancestr y i s black . An d le t m e tel l yo u wh y I foun d that stor y offensive.' " 1 0 1 "In othe r words, " I said , "the y identif y wit h blacks—an d eve n identify themselve s as blacks." "Yes," Rodrig o continued . "An d tha t include s rejectin g whit e privilege, so far as a white-looking person is capable of doing that. In dozens o f encounter s i n life , on e take s o n th e rol e o f being , acting , and speaking out as though one were a black—that is , one of us." 102 "I'm not sur e how that is possible," I said. "Could you give me an example?" "Ignatiev and Garvey themselves give many. Whiteness is a social construct, basicall y a readiness t o accept man y privileges tha t com e to yo u i f yo u loo k a certai n way. 103 I f yo u refus e t o b e whit e yo u begin th e proces s o f destabilizin g tha t construction , whic h societ y

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relies o n t o preserve th e curren t syste m o f racia l subordination . So , suppose a neatl y dresse d whit e person , wh o happen s t o b e a rac e traitor, i s pulle d ove r b y a polic e office r an d the n le t g o wit h a warning. The person ough t t o question th e officer , 'Woul d you hav e done this if I had been black?' " 1 0 4 "So whites ough t t o reject racia l privilege an d challeng e manifes tations of racism that the y observe." "Yes. An d i f enoug h peopl e d o this , th e syste m wil l collapse , because whites will never be sure which othe r whites are disloyal t o the white race in the sense of refusing unearne d privilege and declining to cooperate in the myriad ways society keep s blacks down . Th e race traitor no t onl y oppose s racism bu t seek s t o disrup t it s norma l functioning, an d doe s s o fro m within . Therei n lie s it s power . Th e color line is not th e work o f a few racis t individual s but o f a syste m of institution s an d practices . Rac e traitor s challeng e thes e a t ever y turn: trackin g i n publi c schools ; locatio n o f publi c housin g o n th e other side of the tracks,- so-called meritocratic criteria that firms an d institutions rel y o n unthinkingl y eve n thoug h the y exclud e black s and women." 105 "So the idea is to show total solidarity with us and our causes." "Yes, eve n thoug h thi s mean s puttin g one' s jo b an d friendship s with white s o n th e line . I f th e polic e an d court s coul d no t b e sur e that ever y perso n wh o look s whit e i s loya l t o it , th e syste m wil l fall.106 Fo r then , wha t woul d b e th e poin t o f extendin g privilege s based o n race? White s woul d rejec t loyalt y t o thei r ow n race , rejoi n the human race , and the idea of the white race would fall o f its ow n weight." "A radica l proposal , Rodrigo, " I said . "I' m no t sur e man y o f ou r white friends woul d adopt it. " "It does entail a radical commitment," Rodrig o conceded. "But , as I mentioned, i f onl y a small proportion o f whites did , i t woul d seri ously jeopardiz e th e syste m o f white-over-blac k hegemon y tha t ha s reigned in thi s countr y for ove r four hundre d years . And th e form of identification i t would generate would be real. As we were discussing earlier, empathy is not particularly reliable. One learns only from hi s own experience , not tha t o f others. The race traitor rol e allows people to begin to acquire that experience. " "And it would certainly get us past the kind of halfhearted, gener ally misguide d empath y tha t yo u wer e describin g earlie r an d tha t

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does so little good for us and our people. But I think you said you had a second plan." Rodrigo's Secon d Pla n fo r Whites: Subversion fro m Withi n "My secon d plan sound s almos t lik e the opposit e o f the first, bu t as you'll see it's not. " "Please go on. But, by the way, do you need to call Giannina?" Rodrigo looked a t hi s watch. "He r workshop won' t b e letting ou t for another forty-five minutes . Why don't we go on?" (I nodded.) "My second pla n woul d envisio n white s workin g wit h white s t o lif t th e yokes of oppression tha t burde n both the m an d us. I wonder, Profes sor, i f yo u hear d th e keynot e speec h b y th e famou s whit e radica l a t the recent critica l legal studies conference." 107 "I did. It was spellbinding—delivered wit h great panache. He held the entire room, even without a microphone." "And I' m sur e yo u recal l wha t h e said . H e describe d hi s ow n upbringing as a member of the ruling class, as he put it—prep school, Harvard, antiwa r rebellions , SDS . He wa s a creatur e o f th e sixties , and when h e grew up turned t o Critical Legal Studies for inspiratio n and support. " "He no t onl y turne d t o els , h e helpe d develo p it, " I interjected . "He wa s a foundin g father , helpin g th e ne w movemen t carv e ou t such notions a s indeterminacy an d the theory tha t la w is essentiall y politics." "And d o yo u remembe r wha t h e said , Professor , abou t hi s ow n engagement with racial identity groups?" "I do . H e sai d h e ha d side d wit h Blac k Powe r an d th e Panthers , although as a more or less distant cheerleader and fellow traveler . He said quit e candidl y tha t h e though t h e ha d littl e rol e beyon d that , and tha t a s a member o f th e whit e privilege d clas s he coul d no t d o much more , tha t ther e i s a sort o f built-in limitation . Consequentl y he turne d t o institutional politics , th e politics o f daily life, teachin g elite law students how to survive in the corporate world and subver t their ow n office s an d institutions . Tha t an d deconstructin g lega l doctrine." "What's wron g with that? " I asked. " I was ther e when h e sai d it , and though t a t th e tim e tha t h e wa s bein g commendabl y honest . What else could someone like him have done in life?"

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"I don't wan t t o see m harsh/ ' Rodrig o said , falling quiet . "He' s a famous figure, from whos e work all of us have learned much. " "But you feel there is more he could have done?" "Yes. I keep thinkin g tha t someon e with hi s charism a an d prodigious talen t coul d hav e don e more . Al l i t woul d hav e take n woul d have been a slight shift—a fe w degrees this way, rather than that. " "And that shift i s . . ." I cajoled. "I thin k ou r famou s frien d shoul d hav e devote d himself , a t leas t in part, to working with his own race, that is, with disaffected work ing-class whites. He could have supplied them with the analyses and leadership tha t the y needed , an d a t a crucia l time . Working-class , blue-collar whites , ethni c whites , an d poo r Souther n white s toda y are arraye d agains t minorities . The y hav e turne d agains t u s wit h a vengeance. They ar e th e 'angr y whit e men ' wh o helpe d brin g abou t the Republican revolution that is setting back the cause of social and racial justice, challenging affirmative action , and demanding the end of welfare to the poor and desperate." "You ar e saying tha t i f th e famous whit e radical , an d people lik e him, had stopped flirting with radical chic social movements like the Panthers bac k i n th e sixtie s an d gon e t o preac h t o thei r ow n blue collar brother s an d sisters , w e woul d no t b e i n th e fix w e ar e i n today?" "Yes. The y migh t hav e listene d t o him . Lower-clas s white s ar e not our natural enemies. Quite the contrary. But they think the y are. Elite white s neatl y us e the m t o deflec t attentio n fro m thei r ow n crass materialism , manipulation , an d profits—from th e wa y the y maintain unsaf e workplace s fo r th e workers , pa y bar e subsistenc e wages, phase ou t factorie s a t th e dro p o f a hat creatin g rea l destitu tion, and send jobs overseas if it suits their interest, all at the expense of workers." 108 "So you are saying fancy crit s in elit e positions at th e top school s are responsibl e fo r th e Republica n revolutio n an d th e terribl e tur n things have taken for our people and for the poor?" "I am," Rodrigo replied with conviction. "They took the easy way out. Instead of taking their campaign to the factories an d lower-class tenement districts , the y listene d t o th e Panthers , shivere d a little , and went an d wrot e elegan t la w revie w article s abou t th e structur e of Wester n lega l thought—mostl y fo r eac h other' s benefit . The y abandoned thei r ow n people . Empathy—the shallow , chi c kind—i s

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always mor e attractiv e tha n responsibility, whic h i s hard work/' 109 "Is it too late?" I asked. "It's never too late. Look at what Ralp h Nader is doing. He writes for workers in dangerou s factories, consumer s who buy unsafe prod ucts. 110 H e ha s a fancy la w degree , yet h e addresse s hi s messag e t o those who unfortunately hav e been le d t o thin k we ar e the caus e of their economi c pain . He' s tryin g t o redirec t thei r attentio n upward , to the corporate elite that is oppressing us all, much as Martin Luther King wa s preparin g t o d o towar d th e en d o f hi s life , jus t befor e h e was assassinated. 111 Robert Kennedy, too. 112 There's no reason Nader should be working at this alone." "Nader als o spok e a t th e conferenc e yo u mentioned . H e scolde d the crits for devoting their lives to figuring ou t how many angels can dance on the head of a pin." 113 "I missed tha t session, " Rodrig o said. "I'm hoping it's on tape. I'd like to see it sometime. " "I think the y wer e tapin g it, " I said. "Mayb e your librar y ca n get it." "I'll see when I get home," Rodrigo said. "But, speaking of getting home, Professor, I think I' d better be moving along soon. Thanks fo r the company. As usual, you're a great sounding board." "You've helpe d m e a s well . I'd ofte n wondere d wh y empath y fo r our people, ou r causes , an d fo r th e poo r seem s t o be sharpl y declin ing. You'v e helpe d m e figur e ou t why , an d wha t w e migh t d o about it. " "Speaking about doing things—Giannina's worksho p ends tomorrow a t noon . We were thinkin g o f takin g in tha t ne w sho w o f earl y Industrial-era ar t dow n at th e cross-tow n museum . Want t o join us? We've got a few free hours before we have to go to the airport. " "I'd love to," I said. "Maybe I'll pick up a postcard at the gift sho p and send it to my radical friend yo u were mentioning. We know each other. Mayb e I'll sugges t th e thre e o f us get together sometim e fo r a small summit conference . What do you think?" Rodrigo smiled, fished a few bills out of his wallet fo r his share of the tab , an d gave me a quick squeez e o n th e shoulder . "I' m game, " he said. "I kind of like the guy, too. Want to share a cab?" "You bet . I don' t wan t yo u self-deconstructin g o n m e again . Ready?"

C H A pl? T E R

2

Legal Instrumentalism and the Rule of Law: A Blueprint for Reformers in Hard Times

I was sitting dejectedly i n the airport waiting lounge, cursing myself for havin g take n a winte r flight tha t change d plane s i n a norther n city, when I heard a familiar voice from behind me. "Professor, is it you?" I turned. "Rodrigo, for goodness' sake! What are you doing here?" "I'm just getting back from a speaking tour. I think I told you I' m workshopping my first article . I gave three talks in six days!" "You must be exhausted," I commiserated. "Oh, it wasn't s o bad," my irrepressible protege replied, "althoug h it wen t b y in somethin g o f a blur. I'm afrai d I'l l ge t a telephone cal l from Professo r Jones and not remember what school he's from. " "Tell him you enjoyed meetin g his colleagues. He may mention a name an d that'l l rin g a bell. The olde r I get th e mor e troubl e I have remembering students' names. But I don't have your excuse—I have them all term long." "Your student s lik e you , Professor . I f yo u forge t a n occasiona l name i t doesn' t matter . The y kno w yo u car e abou t them , jus t a s I know you care about me."

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"Enough o f that/ 7 I said. "Tel l m e abou t you r trip . My flight wa s canceled. I've got nearly thre e hours before th e nex t one. 1 I was jus t sitting her e tryin g t o build u p courag e t o ope n m y briefcase, bu t I' d much rather talk with you. " "I've got plenty o f time . I'm early , having caugh t a standby flight in th e nic k o f tim e fro m Chicago . Giannina' s no t expectin g m e til l this evening. 2 Can I buy you a drink or cup of coffee? " "Maybe i n a minute. Si t down, " I said, indicatin g th e empt y sea t next to me. "Tell me about your trip." "Well, a s I said, I spoke a t thre e la w schools , al l i n th e Midwest . Something happened at the one I left jus t this morning. If you have a minute, I'd love to tell you about it. " "Go ahead. As I've told you more than once, I get at least as much out of our conversations as you do. What happened?" "I was having one of those informal sessions . Four professors an d I were meeting in the office o f one of them. It was my last on e befor e going to meet th e dean and off t o the airport. It really got me going— I've done nothing but think about it the whole flight. It's providential that I met you here. I would have called you in a day or two." "Was it something that came up during your talk?" "Only tangentially . I spoke about th e relation o f laissez-faire eco nomics an d th e pligh t o f th e blac k poor , a n aspec t o f m y disserta tion.3 On e professo r apparentl y go t th e ide a tha t I' m intereste d i n Critical Rac e Theory , whic h o f cours e I am , eve n thoug h m y tal k didn't touch on that at all. So he had this question ready for me when we met later in the office. " "What was it? The usual one about affirmative action? " "No, no t a t all . It was about racia l realism, 4 but wit h a pedagogical twist. You'r e familiar wit h th e critique of Derrick Bell' s work a s being too despairing?" "I am . A numbe r o f author s hav e take n Bel l t o tas k fo r that , notably Ala n Freeman , a n otherwis e friendl y writer , i n a review of Bell's first casebook. 5 He and others have questioned whether preaching gloo m an d doo m i s wise, particularly i f i t end s u p discouragin g students from goin g into civil rights or public interest practice. 6 How did you answer the question?" "I pointed out that Bell might well be right, and if so, there's littl e to b e gaine d b y holdin g o n t o fals e hopes . Bu t i t turne d ou t th e professor wa s makin g a muc h mor e subtl e 'a s i f argument , ques -

Legal Instrumentalism and the Rule of Law 3 9 tioning whether , eve n i f w e though t th e conditio n o f black s an d other minoritie s o f colo r i s unlikely t o improve , enjoyin g onl y periodic peak s o f progres s followe d b y regression, 7 w e ough t t o ac t a s though we believed the opposite. Otherwise we'd be paralyzed. There would be no reason to struggle." "That i s a differen t version, " I agreed . "I t remind s m e o f recen t writing abou t myth s an d th e wa y societ y organize s itsel f aroun d sertain belief s an d credos. 8 Even if not literall y true , the myths hel p society run more smoothly. " "I concede d a s much, bu t nevertheles s stuc k t o m y position . W e had a spirited discussion. " "I wis h I ha d bee n there . Tel l me , ho w di d yo u defen d Bell' s thesis?" "I began by laying it out, beginning with th e interest-convergenc e idea—that white s wil l suppor t an d tolerat e gain s fo r black s onl y when thes e also benefit them 9 —then trace d it throug h Bell' s analy sis o f Brown v. Board of Education, 10 an d finally int o it s moder n form, racial realism." ll Just then , th e publi c addres s syste m announce d th e arriva l o f a flight fro m Dallas , and I realized we would soo n have a planeload of passengers streamin g pas t us . "Thi s are a i s fillin g up , Rodrigo . I' d love to hear how you answered th e professor's question , whic h inci dentally strike s m e a s bot h intelligen t an d admirable . I t let s yo u show how you would deal with a recurring pedagogical issue. And at the same time it allows you to strut your stuff o n an important poin t of lega l theory . Tha t professo r ha d obviousl y don e hi s homework . Why don't we continue this conversatio n somewher e else ? There's a little noodl e sho p jus t dow n th e concourse . It smelle d goo d when I passed by. Could you use a bite?" "Always," Rodrig o replied . "The y didn' t fee d u s muc h o n th e flight home—jus t a tiny, dry sandwich." I made a sympathetic face and stood up. As we walked in the direction of the restaurant, Rodrigo continued: "The myth question wasn't too hard, at least until I started thinking more about it later. I told the group in the office tha t minorities and members of the majority grou p need differen t myth s becaus e the y ar e differentl y situated . Wit h re spect to race, what white people need is hope. They need to believe in black progress, because otherwise the y would be consumed by guilt. Most of them have a higher standard of living than ours, longer life ex-

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pectancy, lower rates of incarceration and infant death , and so on 12 — all directly traceable to slavery and social neglect. Consequently, they fasten ont o an y indicato r o f progress fo r black s o r othe r minorities , even during times when our despair, our misery index, is higher tha n ever. They read somewhere that ther e are more left-handed Hispani c plumber's apprentice s in Ohio than twent y years ago and seize upon that as proof that things are getting better." 'The conservative s aren' t consume d b y guilt, " I pointe d out . "They thin k tha t i f ou r progres s i s stalled , it' s ou r fault . W e hav e dysfunctional familie s o r allow ourselves to succumb t o a culture of poverty." 13 "You have a point," Rodrig o acknowledged . "Ye t the y d o hold t o a myth o f progress—namely, tha t th e race problem has been solved . The playing field is now level, as a result of the 1960s-er a reforms, s o that an y black o r Latino who is not progressing today has only himself o r herself t o blame." 14 "So white folk s subscrib e t o an d place great stoc k i n th e myt h of black progress . I agree with yo u o n that . A recent pol l showe d tha t black parent s believ e thing s ar e now a s bad fo r blac k childre n a s a t any tim e sinc e slavery. 15 Th e sam e stud y showe d tha t homicid e i s the leadin g caus e o f deat h fo r blac k youth s betwee n fiftee n an d twenty-four year s of age. Nearly half o f all black childre n liv e under the povert y level , an d 3 4 percen t o f al l teenager s lookin g fo r wor k could not find it, a rate twice that of their white counterparts. Nearly half o f al l blac k babie s ar e not adequatel y immunized , an d full y 6 5 percent o f blac k adult s believ e tha t thei r kid s wil l b e denie d job s because o f racia l prejudice. Nevertheless , mos t o f ou r whit e friend s cannot be made to see that thing s are getting worse, not better for us. But yo u mentione d tha t ther e i s a counterpart myt h o n ou r side of the equation. " "Oh, yes. Whites need the myth o f civil rights progress to be able to function . We , by contrast , nee d a stone-cold sobe r assessmen t o f our chances , eve n i f the y ar e not ver y good . For just a s whites nee d guilt-avoidance, w e nee d t o avoi d self-blame . Fo r us, th e paralyzin g mental proces s i s internalizatio n o f th e terribl e image s societ y ha s disseminated abou t u s throug h th e ages—unintelligent , lazy , sexu ally lascivious , an d s o on. 16 W e als o nee d t o avoi d connectin g ou r low estate—ou r poverty , hig h crim e rate , hig h degre e o f socia l pa thology, an d so on—with ourselve s an d our own efforts. W e need t o

Legal Instrumentalism and the Rule of Law 4 1 keep i n min d tha t ou r curren t conditio n i s th e direc t resul t o f ou r subordination. For us, this bleak realization is healing, is psychically necessary, jus t a s th e mor e sanguine , upbea t interpretatio n i s wha t whites need." 17 The hostess at th e restaurant, wher e we had been waiting briefly , beckoned u s t o com e in . We followed he r t o a booth, sa t down , an d picked u p th e menus . Before w e starte d scannin g the m i n earnest , I asked Rodrigo, "And did that answer satisfy them? " "It seeme d to. At least, we soon moved o n to something else . But it didn't fully satisf y me . On the flight back I realized there's more to it tha n that . I' d lov e t o ru n som e idea s pas t you , i f you'v e go t th e time." I nodded enthusiastically. "Shoul d we order first?"

In Which Rodrigo Reconciles Mainstream Civil Rights Law and the More Pessimistic RacialRealist (Critical Race Theory) Version A fe w minute s late r th e waitres s too k ou r orders , firs t patientl y explaining t o m y ebullien t youn g frien d ho w a certai n Korea n dis h differed fro m on e he had learned t o like in his favorite restauran t i n Chinatown. After sh e had gone, Rodrigo continued: "Nice woman . Wher e wer e we ? Oh , yes—th e optimism-pessi mism gap . What I realized on the flight hom e is that it' s not enoug h simply t o explai n why ou r folk s ar e o n th e whol e les s upbea t tha n whites. We need a theory of what folks like us should do. Should we sit aroun d i n despair ? Tr y harder ? Th e principa l purveyo r o f th e Realist view , Derric k Bell , say s tha t th e situatio n i s grim , bu t on e must struggl e anyway . Eve n thoug h on e knows i n advanc e tha t th e gains will be very slight, th e effort mus t nevertheless be made. 18 Yet he doesn't explain why, exactly. " "It seem s t o b e a n articl e o f faith , a kind o f existentia l commit ment, somethin g tha t give s life meaning , enablin g us t o carr y o n i n an otherwise bleak and desolate world," I suggested. "That's th e interpretatio n I dre w too , bu t the n I began thinkin g we can go further. Th e theory I propose is not so much a replacement as a modification o f Bell's. Under it , subordinate d peopl e woul d ac -

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knowledge tha t i n man y era s an d i n man y courts , succes s i s reall y not possible. At these times, it is best to look elsewhere for relief." "To wha t Gerr y Span n call s 'pur e politics/ " 1 9 I ventured, "mas s marches, picketing , lobbying , th e legislativ e arena—forum s othe r than courts?" "Exactly. And when thes e avenues see m foreclosed, whe n societ y as a whol e seem s t o clos e it s fac e t o us , w e ca n tur n t o ou r ow n sources, our own communities. " "That's self-help , cultura l nationalism, buildin g our own commu nities, lookin g t o blac k colleges, " I said i n excitement . I coul d se e the outline s o f th e long-awaite d theor y o f social chang e forming , something tha t ha d elude d som e o f ou r fines t minds . I longe d t o hear more . "An d so , Rodrigo , yo u thin k tha t what' s neede d i s a n overarching theor y t o tel l u s whic h approac h t o us e a t an y give n moment i n ou r ques t fo r racia l justice . Th e interest-convergenc e theory tell s u s ther e wil l b e time s whe n court s wil l b e hostil e o r indifferent, bu t i f I understan d yo u correctly , tha t nee d no t b e a counsel of despair. Rather, it simply means that we should then look to other means for progress and succor. " "Exactly," Rodrig o replied . "W e shoul d loo k upo n la w a s w e would an y othe r social institution , a too l tha t i s usefu l fo r certai n purposes an d a t certai n times , bu t les s s o fo r othe r purpose s o r a t different times . W e nee d no t succum b t o th e totalizin g despai r o f some o f ou r mos t eminen t theorists , on e tha t actuall y ca n prov e enervating, despit e my rather fli p answe r t o the group this morning . Nor need we embrace the saccharine optimism o f conventional civi l rights theorie s grounde d i n liberalis m an d fait h i n progress . That' s dangerous too , because i t lead s t o disillusionmen t an d burnout . W e need a mor e sustainin g approach , whic h m y mor e pragmati c vie w provides. Wha t d o you think , Professor? " Rodrig o looke d u p cheer fully. "I'd lov e to hear mor e details . But my first impressio n i s that th e idea ha s muc h promise . I t ha s tie s wit h a ne w lega l movement , pragmatism.20 An d it offers a n approach t o our condition tha t prom ises to be liberating—to avoi d th e Scyll a and Charybdis o f overopti mism on the one hand, and despair on the other. Do you have a name for your brain child?" Rodrigo looked up and smiled, whether because of my question or because o f th e arriva l o f th e waitres s wit h a trayfu l o f steaming ,

Legal Instrumentalism and the Rule of Law 4 3 savory-smelling bowls, I could not tell . "Legal instrumentalism/' h e said, moving aside his water glass and making way for the bowls and plates full o f tempting soups and crepe-type dishes.

Rodrigo Explains and Defends Legal Instrumentalism as a Civil Rights Strategy "What are you having?" I asked. "A noodl e dish . I can' t remembe r wha t it' s called . It' s a lo t lik e something Giannin a an d I have a t a Chinese restauran t nea r wher e we live. But it's different—it ha s more ginger. Want a bite?" We trade d morsels , an d Rodrig o commented , "Mmmmm . You r stir fry is really good. So you think my theory has promise?" "Emphatically so . I like its synthetic, umbrella quality, th e way it allows fo r differentiatio n o f strateg y dependin g o n th e time s an d circumstances. And I especially like—how shall I call it?—the mental healt h overtones . I t promise s a muc h mor e liberatin g wa y o f looking a t civi l rights progress, one that avoid s both fals e optimis m and undue despair . Bu t I'd lov e t o kno w tw o things . First, ho w yo u thought o f it . An d second , ho w yo u woul d defen d i t agains t th e charge o f cynicism . You'v e alread y explaine d mor e o r les s ho w i t would work—we'd choos e whatever too l seemed most promisin g a t a given perio d i n history . And I'd als o like t o know ho w yo u woul d respond to the accusation, one you are certain to hear leveled against you, that it goes against th e rather noble ideal of the rule of law. 21 If not frankl y 'antilegal, ' your theor y verge s on demystificatio n o f la w and litigation, for it seems to say, follow the law when that will work for you, an d avoid or break it when i t won't. There ar e precursors of your theory, and they are not in particularly good favor today." 22 Legal Instrumentalis m Rodrigo pause d t o spea r a last noodl e stuc k i n th e botto m o f hi s cup, then continued . " I know about Thrasymachus 23 an d that othe r dialogue,24 as well a s some o f their latter-da y versions includin g 'B y any mean s necessary.' 25 Bu t Socrate s wa s no t vindicatin g a syste m of laws tha t systematicall y oppresse d a minority o f its citizens , an d so the tribuna l tha t sentence d hi m t o deat h wa s muc h mor e legiti -

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mate tha n ours , a t leas t vis-a-vi s him . Ou r Constitutio n exclude d blacks, women , an d thos e withou t propert y fro m th e ver y begin ning.26 It provided for th e institution o f slavery in no fewer tha n te n passages.27 And eve n whe n w e abolishe d tha t institutio n a hundre d years later , a syste m o f Ji m Cro w law s kep t ou r peopl e i n circum stances littl e bette r tha n thos e the y ha d jus t escaped . I t wa s no t until ye t anothe r hundre d year s passe d tha t separat e bu t equal — legal apartheid—began t o be repealed.28 We were not the first natio n to repeal slavery—not eve n among the first ten. " "But surely , Rodrigo, " I interjected , "thing s hav e changed . An d even i f ou r syste m o f civi l right s law s i s no t perfect , doe s i t no t provide at least a degree of protection? Wha t d o we have tha t i s an y better? Anarchy?" "Good points, " Rodrig o replie d mildly . " I don' t wan t t o exagger ate. Sometime s th e court s ar e ou r staunches t allies . But sometime s they ar e not . Durin g thes e time s w e shoul d loo k t o othe r avenues . Otherwise one is just beating one's head against a stone wall." "What you called perseveration before. " "Actually, your two questions turn ou t t o be related. Legal instrumentalism occurre d to me in reflecting o n the idea of legitimacy an d the way in which recent revolutionary leader s have viewed law. Few of th e grea t one s hel d t o an y sor t o f romanti c ideal . Gandhi , o f course, considere d th e Britis h syste m o f law s an d civi l servic e en tirely illegitimate and had little hesitation about ordering strikes and boycotts, eve n thoug h the y wer e technicall y illegal . Marti n Luthe r King believed one had no obligation to obey unjust laws. " "Although Kin g did believe tha t on e shoul d b e prepared t o suffe r punishment a s a consequence," I interjected . "To be sure. And in more recent times , the Black Panthers too k a position ver y muc h lik e th e on e I a m suggesting. 29 Thei r leader s understood tha t th e force s o f la w woul d ofte n b e arraye d agains t them, bu t tha t sometime s on e coul d emplo y litigation , injunctions , and othe r lega l strategie s t o mak e ver y rea l progres s fo r th e blac k community. Cesa r Chave z an d th e farmworkers see m t o have had a similar attitude. There is a long history of outsider groups seeing law in pragmati c terms , a s sometime s legitimat e an d helpful , an d a t other times not. " "In mor e recen t times , Critica l Rac e theorist s hav e bee n callin g attention t o th e wa y thi s happens , no t jus t i n enforcement , polic e

Legal Instiumentalism and the Rule of Law 4 5 abuses, an d th e like , bu t als o overtl y i n lega l doctrine . The y hav e been pointin g ou t tha t whereve r lega l principle s an d rule s conflic t with the interests of the mighty, the law simply coins an 'exception / In time, the loophole comes to be regarded as ordinary and usual, not even looke d upo n a s a n exceptio n a t all . Loo k a t al l th e specia l doctrines th e la w ha s carve d ou t i n th e fre e speec h area. 30 Thes e days, minorities , gays , an d wome n ar e callin g fo r hate-speec h rule s that woul d punis h viciou s name-callin g an d slurs . Bu t ou r friend s over at the ACLU consider thi s heresy and sue every university tha t enacts such a code. They argue that th e First Amendment shoul d be a seamless web, ignoring that w e have literally dozen s of exception s that com e int o pla y i n th e cas e o f speec h tha t threaten s powerfu l groups." "I can think o f several," Rodrigo said. "The wealthy an d powerfu l are considered to have a kind of property interest in their reputation , so speech that damage s them i s compensable eve n though words are the sol e means o f causin g the harm. And th e sam e is true for word s that violate a copyright, communicat e a threat, for m a monopoly, o r constitute misleadin g advertising . Disrespectfu l word s uttere d t o a judge, teacher , polic e officer , o r othe r authorit y figure ar e als o pun ishable, a s ar e untruthfu l word s uttere d unde r oat h o r word s tha t disseminate a n officia l secret . Eac h o f thes e exception s o r specia l doctrines exist s to promote the interests of a powerful group such as the military or consumers." "So, yo u ar e sayin g tha t th e rul e o f la w i n al l it s majest y neve r holds fo r us , bu t alway s fo r ou r adversarie s o r fo r empowere d groups?" "In general, yes," Rodrigo said . "Busines s necessit y i s a valid ex cuse for discrimination. Th e police can search o r arrest you withou t a warran t i f the y ca n sho w goo d faith , whic h sometime s take s th e form o f simpl y pointin g ou t tha t yo u wer e a black ma n walkin g o r standing i n th e wron g neighborhood . Discriminatio n i s permissibl e if i t canno t b e prove d intentional . An d th e ta x code , a s everyon e knows, contain s s o man y exception s tha t man y wh o ear n ove r on e million dollars a year are able to escape paying taxes altogether." 31 "Your point, then, is that people of color should straightforwardl y recognize tha t th e la w wil l ofte n no t protec t the m becaus e i t i s designed t o promot e th e interest s o f others , an d tha t the y shoul d make the best of the situation. "

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"You an d I were discussin g normativit y an d th e intensel y civic minded tur n legal theory has taken recently. 32 While on the plane, it occurred t o m e tha t on e o f th e mai n use s o f normativ e discours e i s to kee p peopl e lik e yo u an d m e fro m criticizin g th e rul e o f law . If everyone, includin g outsiders , ca n b e mad e t o rever e th e law , eve n when i t i s doin g obviou s an d demonstrabl e harm , w e wil l reason : 'Oh, well , it' s a grea t institution , s o w e shouldn' t criticize. ' We'l l agree t o remai n silent , fixatin g o n th e fe w time s tha t lega l institu tions have really helped us . . . " "Like the sixties," I said. "Right," Rodrigo agreed. "An d ignore that th e rest o f the time th e law i s eithe r indifferen t o r positively injuriou s t o ou r well-being. In no othe r are a o f huma n endeavor , wit h th e possibl e exceptio n o f religion, d o we succum b t o suc h totalistic , all-or-nothin g thinking . Imagine, for example , a butcher wh o sol d rotte d mea t defendin g hi s action b y saying , 'Bu t I followe d th e procedure. ' O r imagin e a teacher, al l o f whos e student s faile d standardize d tests , insistin g ' I taught the m that. ' In all these other areas we insist o n results. Imagine th e butcher defendin g hi s practice by saying that th e institutio n of butchery doe s mor e good than harm . We'd cal l thi s th e nonsens e it is!"

"I se e wha t yo u mean, " I agreed . "Man y hav e pointe d ou t tha t procedure i s somethin g tha t ba d me n lov e an d follo w mos t assidu ously. Kafka an d other novelists wrote about that. " "So, minorities should invoke and follow th e law when it benefit s them an d break o r ignore i t otherwise—whe n i t get s in th e way , i s unresponsive, o r is adverse to their interests . We should trea t i t lik e any othe r social institution , th e highwa y department , fo r example . No one hesitates t o call the highway departmen t t o task, t o criticiz e it i f i t i s alway s fixin g th e pothole s o n th e othe r side o f tow n an d ignoring th e one s i n thei r neighborhood . N o on e speak s o f th e maj esty o f th e rul e o f highwa y procedur e o r th e grandeu r o f pothol e fixing. If the department i s doing its job, we leave it alone or give it a pat o n th e back . I f it' s not , w e cal l i t t o account , o r els e wor k ou t some other way of getting the potholes fixed. " "Rodrigo, yo u ar e sayin g tha t socia l reformer s shoul d subsum e law unde r thei r agenda , whic h i s t o achiev e progress fo r minorities . Law-types approac h thing s i n jus t th e opposit e way , insistin g o n subsuming racia l refor m unde r law . La w peopl e plac e la w a t th e

Legal Instrumentalism and the Rule of Law 4 7 center, and then ask where racial justice should fit in. Should Martin Luther King be allowed to march in the face of an injunction? Shoul d civil disobedienc e b e countenanced ? Shoul d a whit e charge d wit h discrimination be able to escape by showing a business necessity, o r a lack of intent or causation?" "I agree . W e shoul d deman d th e opposite—tha t rac e refor m b e placed i n th e center , followin g whic h w e shoul d as k wher e la w fit s in. That' s th e mode l I' m proposing , an d doe s i t no t mak e jus t a s much sense as the other approach?" "It seems to me," I said, "that it all depends on what is uppermost in your mind, on what your objective is. The law-lover will subscribe to mythic, heroi c views abou t th e rul e o f la w an d insist tha t every thing else be addressed within tha t framework. We , by contrast, wil l take a more utilitaria n vie w o f law , a s th e Panther s did . We'l l ask : 'What can law do for us at this time and place?' " "And that' s th e vie w I sugges t unde r th e rubri c o f 'lega l instru mentalism.' We should demystify law , see it as the social institutio n it is: good for som e things, less so for others . As we observed before , theory-fitting i s everything . I t make s n o sens e t o us e Gramsci 33 t o help you prepare a budget, nor law and economics to try to make thi s a faire r worl d fo r exclude d groups . W e shoul d avoi d counsel s o f despair. But , b y th e sam e token , w e shoul d disavo w faile d libera l programs tha t achiev e to o littl e becaus e the y promis e to o much . Hence, lega l instrumentalism : tr y everythin g unti l yo u find wha t works." Rodrigo Defends Instrumentalis m agains t th e Charg e That I t Is Unprincipled The waitres s appeare d a t ou r table : "Woul d yo u gentleme n lik e some dessert?" Despite m y doctor' s order s t o cut down , I looked u p at Rodrigo inquiringly, as I very much wanted to prolong our session. His enthusiasti c no d di d muc h t o alla y m y guilt . "You'v e bee n through a lot," I said. "Besides , I don't thin k they'r e servin g suppe r on this make-up flight I'm taking in two hours." We both scrutinize d the dessert menu, gave the waitress our orders (a sweet steame d bu n for m y high-energ y youn g friend , a n abstemiou s plat e o f mandari n orange slices for me), and returned to our conversation . "Rodrigo, I lov e you r theory . It' s exactl y wha t w e need , bot h

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tactically an d psychologically. As you pointed out, it has much hon orable historica l precedent . And , i t square s wit h m y sens e o f ho w law work s t o preserv e th e advantag e o f th e powerful , accept s an d takes accoun t o f that , an d enable s u s t o g o o n nevertheless . Bu t perhaps you r theor y i s somethin g tha t w e shoul d no t spea k o f to o openly. Perhaps we should keep it in-group. Perhaps it should remain on th e leve l o f myth , a s you spok e o f before, an d not b e put ou t fo r public consumption. " "Why would we do that?" Rodrigo looked concerned . "I mean t n o criticis m o f you r theor y a s a wa y t o interpre t an d organize experience . O n tha t level , it' s a fin e insight . Bu t won' t mainstream scholar s accuse you of cynicism, of weakening the social fabric? An d won't the y have a point? Yo u do seem t o be saying tha t obeying the law is not important, a t least for minorities." "I believ e deepl y i n th e socia l fabric, " Rodrig o replied , suddenl y solemn. "Bu t I don't equat e that with th e law any more than I think we should equat e societ y with th e highway department , o r with th e institution o f conscription . Eac h o f thes e i s a mean s t o a n end . Anyone wh o argue d tha t w e shoul d venerat e th e highwa y depart ment o r th e militar y draf t woul d b e see n a s a littl e strange . I' m suggesting tha t w e thin k o f th e la w i n th e sam e way , an d tha t fo r minorities, a t least , ther e ar e eve n stronge r reason s fo r doin g so . None o f u s wa s a t th e Constitutiona l Convention , onl y thre e o f u s have bee n electe d t o th e Senate , non e t o th e presidenc y o r vice presidency, an d ther e i s no t a singl e blac k CE O o f a Fortun e 50 0 company. No t t o mentio n th e wa y i n whic h lega l doctrine , th e la w on the books, as well as the law in action, ar e almost alway s arraye d against us." I was silent a s Rodrigo stole a look at th e items on the tray of th e waitress a s sh e passe d b y ou r table . "Thos e loo k good . To o ba d they're no t fo r us, " h e continued . "Notic e tha t larg e institution s never subscrib e t o the rule of law, at least never venerate it th e wa y everyone tell s minoritie s the y ar e suppose d to . A corporatio n tha t calculates that i t is cheaper to market a product with a design defec t the corporation know s will cause X injuries o r Y deaths will often d o so if it figures it can get away with it or that the cost of compensatin g the victims is cheaper than that of retooling its assembly line." 34 "Or the y reason tha t som e members o f the public won't sue . The victims ma y know they have been injured bu t no t by whom. 35 The y

Legal Instrumentalism and the Rule of Law 49 may not want to make trouble. Or they may fear that filing a lawsuit will take too long and cost too much money. 36 So a corporation tha t causes te n injurie s ma y onl y be sued five times. The cos t o f repair s may b e grea t enoug h tha t the y simpl y decid e t o internaliz e th e deaths, broken bones, and cases of cancer as costs of doing business," I added. "Corporations are not the only ones who behave this way. Nations do a s well . I f a larg e powe r need s t o tak e actio n t o promot e it s interest, it will often d o so even if this violates international law or a treaty t o whic h i t i s a signatory. 37 I n doin g so , i t realize s thi s wil l have a cost—that othe r nation s will be resentful an d not trus t i t s o much i n th e future . I t know s it s actio n wil l weake n th e tenuou s compact amon g nation s t o b e law-abiding , eve n whe n ther e i s n o superpower t o enforc e th e rules . I t know s thes e things , bu t factor s them in as just another cos t of its course of action, like the lives and airplanes that will be lost in the invasion or coup." "Great politica l theorists , ol d an d new , hav e recognize d this : nations act in their own self-interest." 38 "I'm sur e we're thinkin g o f th e sam e people," Rodrigo added . "I t only make s sens e t o approac h civi l rights la w nonideologically . W e should be zero-based and as dispassionate as possible, choosing legality whe n doin g s o wil l benefi t us , an d straightforwardl y pursuin g other mean s whe n i t doe s not. Ideology, whic h include s th e slavis h devotion t o law , alway s ha s costs . I t prevent s yo u fro m makin g alliances, fro m pursuin g a n avenu e tha t migh t brin g yo u benefit . Nietzsche though t tha t was its whole purpose. 39 He may have had a point." "There's bee n som e writing on a similar notion, namel y tha t mi norities ough t t o rethink thei r historic , an d now near-reflexive , em brace o f th e Democrati c Party, 40 on e tha t ha s bee n yieldin g fewe r and fewer gains. Some suggest that blacks should consider switchin g allegiance t o th e Republicans , a t leas t t o th e moderat e win g o f tha t party. I f th e Democrats ar e allowe d t o thin k the y ca n coun t o n ou r vote n o matte r ho w diffidentl y the y trea t us , wh y shoul d the y no t begin withdrawing from us and begin courting conservative whites?" "Something lik e thi s seem s actuall y t o hav e happened, " Rodrig o observed. " I wasn' t her e fo r mos t o f th e perio d yo u ar e describing , but I read of it in the Italian newspapers, which tak e a lively interes t in U.S. affairs. And I read that article you are referring to."

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"The zero-based one?" "Yes. Oh , thos e loo k great! " Th e waitres s ha d brough t ou r des serts. As she placed the m i n front o f us I asked Rodrigo: "I hope we can get throug h a t leas t tw o mor e matter s befor e I hav e t o hea d off . First, I' d lik e t o kno w wha t thought s yo u hav e o n whethe r lega l instrumentalism—which, b y th e way , I think i s bound t o dra w fir e from centrist s an d even from som e of our friends—will no t tur n ou t to b e jus t a phase , o r moment , i n civi l right s history . A s thing s improve for us, as society becomes more multicultural an d demography shifts , wil l w e no t joi n th e majorit y an d the n hav e a stak e i n proclaiming th e rul e o f la w a s loudl y a s anybod y else? " Rodrig o looked u p dubiously . "An d second , ar e ther e no t risk s i n adoptin g such a calculatin g vie w o f law ? I f on e make s trade s an d compro mises, i s ther e no t a dange r tha t thes e thing s ma y com e bac k t o haunt one ? Perhaps it's better to stick to principle, after all. " Rodrigo held up one finger a s he chewed his bun. "I know it's kind of a big order, all for dessert." Rodrigo snorted at the doubl e entendre . "Bu t mayb e w e coul d mak e a start . Actually , I've got"— I looke d a t m y watch—"almost a n hour. So , if yo u hav e the energy, why don't we start." Rodrigo put down his fork and began.

Rodrigo Explains Why Self-interest, Not Idealism, Is the Best Course for Minorities, and Why One Should Rarely Put Too Much Faith in InterestConvergence with the Dominant Group Why Self-Interes t I s the Safes t Cours e fo r Disempowered Peopl e "We ca n onl y loo k t o ou r ow n self-interest , Professor , an d rarel y to th e altruis m o f th e majorit y grou p becaus e ou r socia l construc tion—the image s an d picture s o f u s tha t th e majorit y cultur e dis seminates an d consumes—limit s th e amoun t o f goo d wil l tha t comes our way. We discussed some of this before—the wa y in which the dominan t societ y find s i t convenien t t o depict us as lazy, crimi nal, lascivious , no t ver y smart , an d s o on. Ove r tim e thes e picture s begin to seem like the truth, begin to seem real."

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"Some white s escap e thos e forces/ ' I replie d quietly . "Som e o f them ar e humane, generous, treat us a s equals. You mentioned you r thesis adviser, for one." "True," Rodrig o conceded . "Bu t I' m talkin g abou t politics , abou t large numbers. And when yo u loo k a t tha t level—b y whic h I mean the level of polls, attitudes, the ways the American people as a group look at race—you find something that I call 'guilt by definition.' " "The term is new to me, but I think I know what you mean. We're a grou p whos e ver y socia l constructio n incline s member s o f th e majority rac e t o fea r us , t o regar d u s a s potential troublemakers , t o cross th e stree t whe n w e approac h the m o n th e sidewal k a t night , that sort of thing?" "That i s indee d par t o f it . W e discusse d thi s earlie r whe n w e talked abou t black an d white crime. 41 But now I think tha t som e of those earlie r observation s ca n b e generalize d int o a n argumen t fo r legal instrumentalism a s the onl y san e approach t o civi l rights—fo r blacks and people of color, at any rate." "Let me guess how that generalizatio n might go," I said. "You are going to sa y tha t incessan t characterizatio n o f blacks i n demeanin g terms mean s tha t th e averag e membe r o f societ y virtuall y equate s any on e o f u s wit h trouble . W e com e t o b e see n a s absen t fathers , welfare mothers , lazy offic e worke r 'quot a queens, ' and s o on. Onc e this set s in, we have little chanc e o f appealin g t o th e better nature s of persons who hold this unconscious image of us. The image renders us 'Other.' It means people simply don't think of us as individuals t o whom love , respect , generosity , an d friendlines s ar e due . W e ar e 'beyond love / a s yo u an d I discusse d before. 42 Th e psychologica l experiments o f helpin g behavio r sho w thi s conclusively . A blac k female confederat e spill s a bag of groceries and only blacks will hel p her. A blond, blue-eyed woman doe s and everyone rushes t o her aid . And the same with stranded motorists and other people in distress. 43 Is this the general mechanism you were thinking of?" "Yes. And to anticipate your question, I do believe one can extrapolate from th e personal to the political level—what is true of individuals is also true of groups. So that an y theory o f race must tak e int o account thi s lac k o f goo d will o r fellow-feeling. D o yo u hav e a garden, Professor?" The questio n too k m e b y surprise . "Yes , I have a small one . No t that I have been tendin g t o i t a s much a s I should. W e had a muc h

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larger one before w e moved here. What connectio n ar e you tryin g t o make between gardening and civil rights?" I half winced, knowing of Rodrigo's penchan t fo r colorfu l metaphor s an d extrapolations . I t turned out that my fears were unfounded . "If you'v e gardened , Professor , yo u kno w abou t th e concep t o f weeds. A weed i s an y plan t tha t a societ y deem s undesirable , suc h as dandelions . Yet , i n m y hom e country , ther e ar e region s wher e dandelions gro w wild , populat e entir e hillsides , an d ar e regarde d a s rather beautiful. " "I remember," I said. " I was in your country not lon g ago. As you know, I spent las t summe r a t a conference stud y cente r i n norther n Italy. Whil e there , I drov e throug h th e Dolomit e mountain s i n th e late spring . Th e fields o f brigh t yello w dandelion s wer e ver y beau tiful." "Racial feature s ar e like weeds an d dandelions. There i s no DN A divide tha t separate s commo n weeds , lik e thistles , dandelions , an d clover o n th e on e hand, fro m fine grasse s an d flower s o n th e other . The categor y i s constructe d an d varie s fro m societ y t o society . Th e same i s tru e o f race . Our facia l features , ski n color , an d hai r d o no t set us apart in any important wa y from whit e people, who accordin g to scientists share virtually all of their genetic makeup with us. 44 We are the same species. It is only because society chooses to regard th e small physical differences betwee n blacks and whites as marking out different race s tha t w e eve n construc t suc h categorie s instea d o f some othe r ones , suc h a s heavil y eyebrowe d person s versu s thinl y eyebrowed persons or something similar." 45 "But we do, and the categorie s come loaded. We place value judgments o n them—they ar e not neutral, " I said, building on Rodrigo' s observation. "W e notic e colo r no t jus t a s a curiosity , a s a mino r difference o f no great importance, but in order to organize society, t o assign people to statuses. You and I are the weeds, they the flowers. " "Our ver y categor y implie s tha t w e ar e one-down , th e sor t o f people whom majorit y societ y ca n affor d t o give disparate, an d usu ally worse, treatment , al l with impunit y an d whil e feelin g perfectl y ethical abou t it. 46 Therefore , w e nee d t o ten d ou r ow n gardens . My approach—legal instrumentalism—i s simpl y radica l individualis m applied t o the racial predicament. I f our construction wer e different , this approach migh t not be necessary. But because of our history and culture, becaus e o f ho w w e wer e brough t here , th e institution s o f

Legal Instrumentalism and the Rule of Law 5 3 slavery, conquest , Bracer o programs, racis t immigratio n quotas , an d so on that kep t minorit y population s suppresse d fo r years, it is . In a way, it's like the bootstrapping and self-help approaches that neocon servatives lik e Sowel l an d Lour y have been urging , but fo r differen t reasons." 47 "The negative images may change, may even now be changing," I said, determined t o play the devil' s advocate as long as possible. "I n every era , som e mainstrea m writer s o r moviemaker s tak e ou r side, depict us sympathetically . Th e image may in time be supplanted b y a more nuanced, humane one." "I know, " Rodrig o conceded . "Th e troubl e i s tha t ou r defender s tend to have no audience. Their work is seen as political, as 'message' pieces.48 It is only later, after consciousnes s changes, that we see that they wer e righ t afte r all . Harriet Beeche r Stowe' s abolitionis t nove l sold well only after decade s of activism had sensitized th e America n public to the possibility tha t slaver y might be wrong. 49 Nadine Gor dimer won th e Nobel Prize only when her countr y was on the verge of repudiating apartheid. And have you heard of the role of 'attestors,' Professor?" I strained , tryin g t o remembe r wher e I ha d recentl y rea d abou t such a thing . "Doe s i t hav e t o d o wit h authenticatio n o f th e slav e narratives?" I asked. "It ma y aris e there, " Rodrig o said . "Bu t I was reading abou t i t i n connection with the work of some early African-American poets. " ~ "Oh yes , no w I remember, " I said . "Philli s Wheatle y wa s one . Didn't th e America n publishin g worl d refus e t o believ e tha t she , a onetime slave, actually wrote certain collections of poems?" 50 "Exactly. Several Bostonians, including the governor of Massachusetts an d Joh n Hancock , ha d t o ste p in . The y kne w Ms . Wheatle y and testifie d tha t sh e indee d ha d writte n th e poem s i n question . Most others in American letters did not believe an African-America n woman wa s capabl e o f suc h a thing . Bu t th e od d thin g i s tha t th e attestors themselve s wer e no t poet s a t all , wherea s Wheatle y ha d gained recognitio n i n Bosto n an d i n Englan d for he r poetry . It's lik e going to th e loca l mayo r fo r confirmatio n tha t Alexande r th e Grea t was really a major political figure. " "And you think th e presence o f attestors show s somethin g abou t our social quandary?" "It does . Attestor s wouldn' t b e necessar y i f w e ha d a n equa l

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chance to be recognized o n our own merits. And when societ y toda y hears from, say , Frank Michelman o r Gary Peller that minority work is good , i t come s a s a surprise , lik e hearin g a scientis t sa y tha t a certain kind of common weed in your garden might be good.'7 "I believ e yo u ha d sai d earlie r tha t th e situatio n toda y i s eve n worse than it's been, that we are more ensconced as weeds now tha n in recent years." Rodrigo smiled at my use of his metaphor. " I did. Not onl y are we one-down, w e ar e o n th e defensiv e whe n w e merel y wan t t o rise , want t o chang e ou r position. Affirmative action , unde r whic h a paltry few of us get hired, has come under attack a s unprincipled and an affront t o innocen t whites. 51 Ou r povert y i s see n a s a choice , a s something w e enjo y o r wallo w in , a s evidenc e o f th e pathologica l nature o f ou r culture , values , o r famil y structure . Ou r demand s fo r justice ar e see n a s request s fo r entitlements , fo r thing s w e don' t deserve." 52 "Consider th e whol e 'politica l correctness ' movement, " I sug gested. "A prim e case . Ou r detractor s appl y th e ter m t o thos e wh o ar e merely asking for a slight modification i n the canon, the list of books that are taught at universities. It's applied to those who ask for ethni c studies course s or departments i n universities tha t offe r hundred s of other courses of study, t o those who ask for controls on vicious slur s like 'nigger,' 'kike,' 'spic,' and 'fag.' The conservatives who wield th e term put us on the defensive, a s though we were nags pursuing petty concerns." "Yet their label has certainly caught on," I conceded ruefully . "Despite it s disreputabl e history . I wonde r wh y nobod y ha s pointed thi s out . Politica l correctnes s i s littl e mor e tha n a modern , sanitized, prettified versio n of an old term. It means one who sympathizes with the blacks, who takes their point of view." "I'm sure we both know what word you mean," I said. "Nigger lover, " Rodrig o replie d wit h distaste . "That' s wha t i t comes dow n to . Althoug h it' s naturall y a sanitize d version , that' s what it means. Those who use it ought to be ashamed of themselves. Yet the y ar e not , whic h prove s m y poin t abou t ou r curren t estate . Most o f ou r defenders , mos t liberals , d o no t identif y th e ter m fo r what i t is , but rathe r bac k awa y from th e accusation . 'Oh , no, ' the y say. 'I'm not being politically correct, I just. . .' "

Legal Instramentalism and the Rule of Law 5 5 "Just like in the old days/' I observed wryly. Just the n th e waite r arrive d t o as k i f w e wante d anythin g else . Rodrigo moved t o get out his credit card , but I said, "Pleas e let me. The airlin e sai d they' d pay . I have thi s vouche r becaus e o f the canceled flight. Would you like some coffee? " "Do we have time?" Rodrigo asked. "I do . And I'm lookin g forwar d t o hearin g abou t tha t las t poin t you promise d t o address . Tw o coffees , please—on e decaf , th e other... ? " "Do you have espresso?" Rodrigo asked. The waitress nodded. "A double please." Rodrigo Explains Why His Plan Is Better tha n Interest Convergence, Whic h Ca n Easily Lead Reformers t o Take the Short View and Make Sacrifice s Tha t Tur n Ou t to Be Unwise "I forgot t o say regular," Rodrigo said with a slightly worried look on hi s face . "I'v e notice d tha t mor e an d mor e place s ar e sellin g decaffeinated espresso , whic h I consider practicall y a contradictio n in terms, like a nice weed." I looked at my animated, rail-thin young friend with his exuberant manner an d said, "Don' t worry , I have a feeling she'l l bring you the high-octane kind . I f not, we can send i t back . I did order decaf , but that's no reason she should assume you'd want the same." Rodrigo wa s silen t fo r a moment , the n looke d up . "O h yes , I remember th e last point . It has to do with a serious disadvantag e of the interest-convergence approach. I don't want to be too critical. My approach i s intende d t o reconcil e th e bes t o f interest-convergenc e and th e excessive an d unwarranted optimis m o f libera l civi l right s theory. So, in a way, legal instrumentalism include s interest-conver gence as a special case and doesn't really contradict it." "Never mind," I said. "Criticizing their elder s is what youn g people do. Everyone expects it. People like Bell and me have come in for much worse criticis m tha n what I imagine you are likely to deliver. So, get on with it. Do you mean tha t interest-convergence send s you looking for the rare miracle—the one moment in a decade or century when whit e an d black interest s coincide—an d leave s yo u withou t direction the rest of the time?" "It doe s have that drawback, " Rodrig o said. "But I think there' s a

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more serious one that Bell, for all his brilliance, did not see." Rodrigo paused. "I do want t o hear it. I never thought I would accuse you of being too respectful , an d her e yo u ar e holdin g back . Besides , I'v e go t t o catch a plane in"—I glanced at my watch—"less than forty minutes . They could announce my flight any time now/ ' The waite r arrive d wit h ou r coffees . "Deca f fo r you , Professor/ 7 she said. "And the real thing for you," she added, smiling. I wondered idly how she knew I was a professor. "Mmmmm. Thi s i s good, " Rodrig o said , slurpin g hi s espresso . "I'm gla d you suggeste d this. " Then, afte r allowin g me t o take a sip of my own brew, he continued as follows. "You know how the few great ringing victories—the sor t of thin g that happen s onc e a decad e o r so , lik e Brown v. Board of Education53—have a way of slipping away, cut back by narrow interpreta tion, obstruction, o r delay?" 54 "Of course . Bel l an d other s hav e pointe d ou t tha t mor e blac k schoolchildren atten d predominantl y blac k school s no w tha n wa s the cas e forty year s ago , when th e Suprem e Cour t decide d Brown. 55 The Sout h mounte d rea l resistance,- i n th e Nort h man y whit e fami lies simply move d away . Courts eventuall y decide d that segregatio n that results from housin g patterns is irreparable. 56 Education is not a fundamental interest, 57 no r povert y a suspec t class, 58 s o tha t prop erty-rich schoo l district s ma y offe r first-rat e education s whil e poo r ones have much les s to offer. Ou r yout h suffe r suspension , dropout , and assignmen t t o special-educatio n track s an d classe s a t rate s tha t ought to be a national embarrassment." 59 Rodrigo agreed . "W e see m destined , a s Bel l put s it , fo r periodi c peaks o f progress followed b y valleys o f regression. Onc e ever y blu e moon th e star s lin e up , an d th e syste m grant s u s a seeming victor y for reasons of its own . . . " "Such as Cold War politics, as Mary Duziak and Bell have noted," I interjected. 60 "And othe r reasons , too, " Rodrigo continued . "An d i n a way thi s points ou t a deficiency wit h th e interest-convergenc e theor y fo r un derstanding racial politics. It can deceive you int o thinkin g th e con vergence will last longer and prove more stable than it will, when i n fact th e star s hav e onl y foun d themselve s line d u p fo r a moment , like i n a n eclipse . But a more seriou s problem, " Rodrig o continued ,

Legal Instrumentalism and the Rule of Law 5 7 "is that one can easily take the short-term view and get so caught u p with capturin g and exploiting the approaching convergence tha t on e gives away a long-term asset of inestimable value." "Do yo u mea n tha t w e ca n becom e s o hungr y fo r a victory , s o anxious for som e sig n of progress tha t w e leap t o the bait regardles s of whether w e should? " I didn't quit e ge t Rodrigo' s drif t an d hope d he would explain. "Let m e giv e a n exampl e fro m recen t history, " h e said . "Recal l the period just before Brown v. Board of Education. Everyon e know s that w e wer e the n i n th e earl y stage s o f th e Col d War . Russi a ha d emerged as a world power. We were engaged in a worldwide struggl e for the loyalties of the uncommitted Third World." "Most of which was black, brown, or Asian," I added. "Indeed, Bell' s thesis hold s tha t i s the reason why th e U.S. establishment intervene d o n behal f o f civi l rights . I t woul d hardl y d o for u s t o b e maintainin g tha t ou r syste m wa s bette r tha n godles s communism whe n th e fron t page s o f newspaper s aroun d th e worl d carried stories and pictures of lynchings, cross burnings, whites-onl y drinking fountains, an d the Emmett Till murder." 61 "So, accordin g t o Bell , th e America n establishmen t pushe d fo r civil rights breakthroughs , no t t o advanc e black interests , bu t thei r own. Mary Dudziak recently confirmed Bell' s hypothesis throug h a n analysis o f Stat e Departmen t an d othe r governmen t documents , which showe d tha t th e U.S . Attorne y Genera l finall y decide d t o throw its weight behin d th e NAACP Legal Defense Fun d only whe n the State Department sen t it various urgent messages requesting tha t it do so." 62 "And so we got Brown/' I added. "And singin g an d dancin g i n th e street s followe d b y disappoint ment a fe w year s late r whe n w e learne d th e decisio n wa s scarcel y going t o restructur e America n societ y o r eve n benefi t tha t man y black school kids." "And yo u thin k tha t instrumentalis m avoid s thi s mistake? " I asked. "I think excessiv e optimism is always a risk with a group that ha s been excluded , tha t ha s been dow n s o long. But instrumentalis m a t least point s u s i n th e righ t direction , get s u s t o as k th e righ t ques tions: Wil l thi s strateg y work ? Wha t wil l happe n t o thi s break through a few month s o r years later ? I f we put X dollars int o litiga -

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tion thi s year, will the Supreme Court rewar d us, with what, an d fo r how long ? Interest-convergenc e jus t tell s you tha t thi s ma y (o r may not) be the tim e t o strike . One should alway s look further dow n th e line and ask what th e practical effect o f anything will be/7 "That seem s to me quite useful," I observed. "Bu t does it amoun t to anythin g mor e tha n remindin g ourselve s tha t 'interest ' ough t t o be see n longitudinally , a s a long-term thing ? Smar t revolutionarie s do that now. " Rodrigo winced. "Touche . But le t m e go on a bit. Perhap s instru mentalism—the theor y tha t on e ough t t o resor t t o la w i n th e wa y one woul d resor t t o an y tool , lik e th e yello w pages , onl y whe n i t promises concret e benefits—doe s indee d offe r a mor e fruitfu l ap proach than either of the principal alternatives. " "Just a minute," I said, indicating that I had heard something. We were silent a moment while I absorbed a message coming through on the loudspeaker . "Oh , no, " I groaned. "Anothe r twenty-minut e de lay. Well, a t leas t m y fligh t seem s t o be coming in , eve n i f it' s late . Take you r time , then . M y gat e i s onl y tw o o r thre e dow n th e con course, and I'm already checked in. " "My point is cautionary only. The idea is that you must always be careful abou t pursuin g interes t convergenc e wit h th e dominan t group, because in your eagernes s you ca n easil y give away the store , sacrifice somethin g of too great value. The dominant group gives you what yo u wanted , bu t th e valu e o f wha t you'v e gaine d quickl y erodes, s o that yo u have little lef t i n th e lon g run, an d in th e mean time you have forfeited somethin g even more precious." "I assum e yo u ar e thinkin g o f mor e tha n th e thousand s o f hour s of gallan t lawyerin g an d ten s o f thousand s o f dollar s i n lega l cost s that went into bringing about the Brown victory?" "Those as well as human cost s of a different sort . They have to do with self-definition. I f a community begins to think of itself i n term s of its relation t o a different community , i t may start to lose its sense of itself , wh o i t is . I f w e an d ou r folk s ar e constantl y placin g our selves i n th e mind-se t o f powerfu l whit e folks , tryin g t o se e wha t they wil l want , ho w the y wil l facto r u s in , tryin g t o stage-manag e interest convergence , we can easil y start t o change not jus t what w e want, bu t wh o w e are . Huma n being s ar e coterminou s wit h thei r social surroundings . Ou r identitie s largel y deriv e fro m who m w e identify with , who m w e tr y t o please , who m w e empathiz e wit h

Legal Instrumentalism and the Rule of Law 59 imaginatively. In some respects, the black community is safeguarde d from overidentificatio n wit h th e majorit y o f societ y becaus e o f th e way the majority regard s us." "As we discussed earlier," I commented. "Right. But some of us d o have a tendency t o try to identify wit h them. They have all the power, can dispense rewards, control who is seen as beautiful, smart , acceptable, and so on." "It's a trap all subordinated people can fall into," I said. "Psychologists cal l i t identificatio n wit h th e aggressor. 63 A milde r ter m i s assimilation." "And so this can easily happen. But a more serious problem arise s from anothe r mean s by which group s defin e themselve s an d chang e their contours : expulsion . A t an y give n time , a subordinate d grou p has leaders, theorist s wh o rail agains t th e group's mistreatmen t an d are able to articulate it. These may be writers, playwrights, or Marxists—persons wit h a n acut e understandin g o f th e group' s conditio n and a fervent commitmen t t o changing it." "And you'r e sayin g tha t a minorit y grou p ben t o n pursuin g th e interest-convergence strateg y ma y to o easil y jettison , to o easil y os tracize geniuses such as these?" "There have been many examples. In our day, there could soon be more." "Could you give me an example?" I asked. "Two recen t leader s wh o com e t o min d ar e Pau l Robeson 64 an d W. E. B. Du Bois. 65 Both were major figures, extremely serious losses. Both die d i n bitternes s an d sorrow , effectivel y cu t of f fro m thei r communities—purged, really. 66 Al l thi s happene d becaus e blac k leaders decided, in the late 1940 s and early 1950s , that the y were too radical, ha d to o man y tie s wit h th e Sovie t Union. 67 D u Bois , i n particular, wa s a giant figure, yet he was expelled from th e NAACP, an organization h e had helped found decade s earlier, onl y to be later reinstated, bu t relegated to a minor role. 68 Both men were casualtie s of th e Col d War , pur e an d simple . Ou r communit y expelle d them , traded the m i n hope s o f presentin g a purified, sanitized , non-Com munist front . Th e strateg y worked—i t brough t abou t Brown v. Board of Education. Bu t in one way of looking at it, it was not wort h the price. Brown quickl y faded, whil e the penetrating critiques thes e two figures ha d t o offe r wer e muffle d an d lost . I t wa s no t unti l th e advent o f th e Blac k Panther s an d o f Malcol m X decades late r tha t

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anything approaching a radical critique of American institutions an d racism sprang up again. We sold our birthright for a mess of pottage." "And yo u thin k thi s i s inheren t i n interest-convergenc e philos ophy?" "No, no t inherent . Bu t i t i s a n ever-presen t an d ver y rea l risk . If you plac e momentar y interes t an d alignmen t wit h th e majo r powe r players a s you r first priority , wha t i s t o sto p yo u fro m sacrificin g your leaders, your young, or anything else that stand s in the way, for that matter? " "I se e wha t yo u ar e saying . Instrumentalis m a t leas t make s yo u stop an d ask whether th e actio n yo u ar e taking has long-term costs . It als o prompt s yo u t o thin k whethe r th e mor e powerfu l interes t group yo u ar e tryin g t o ge t t o ac t i n certai n way s ma y no t a t th e same tim e b e seein g yo u i n instrumenta l terms . Th e approach' s radical individualis m remind s yo u tha t other s ma y no t hav e you r interests a t heart , a useful thin g fo r subordinate d group s t o kee p i n mind. You are less inclined t o tell a towering figure like W. E. B. Du Bois he or she is not needed anymore. By the way, you seem to have been reading up on this period in history. Was Du Bois's banishmen t merely a coup within th e NAACP, or broader than that?" "Much broader, " Rodrig o replied soberly . "Th e entir e black com munity was turning to the right, just as America was jumping aboard the anti-Communis t bandwagon , McCarth y wa s holdin g hearings , and peopl e wer e seein g Communist s unde r ever y bed . Befor e tha t time, th e African-America n communit y ha d been quit e receptiv e t o radicalism. Marxist s an d labor unionist s ha d bee n give n place s o f honor. Pau l Robeso n eve n travele d t o th e Sovie t Union . The n th e tide changed . African-America n newspapers , ministers , an d othe r leaders began speakin g ou t agains t communism , bega n urgin g black people to rekindle their patriotism, join the army, and so on, in hopes of securin g bette r treatmen t a s a race . I f successful , i t wa s onl y marginally so . Th e fifties wer e no t a goo d perio d fo r us , an d th e sixties, althoug h a tim e o f breakthroughs , establishe d littl e i n th e way of a lasting foundation. Ye t we lost the beginnings of radicalism, and, a s a result, toda y we are flailing abou t tryin g to find out wher e to start, how to see our condition anew. " My reveri e wa s disturbe d b y a n urgen t message : m y fligh t wa s boarding righ t now . Wit h a start , I realized I must hav e misse d th e boarding announcement i n my fascination wit h Rodrigo's story.

Legal Instrumentalism and the Rule of Law 6 1 "Is that your flight V Rodrig o asked. "Unfortunately, yes/ ' I replied, scramblin g t o pick u p m y things . "Will you give the cashier this voucher? It should take care of everything. It' s bee n stimulatin g a s always , Rodrigo . I'll cal l yo u whe n I get back, okay?" We shook hands quickly , wishe d eac h othe r well , an d thre e min utes later I was fastening my safety belt in preparation for takeoff . As th e plan e banke d steepl y an d gaine d altitud e I wondere d why , after fort y year s o f civi l right s scholarship , i t wa s lef t t o Rodrigo , a mere yout h o f twenty-fiv e year s o r so , to hi t upo n suc h a n obviou s solution a s legal instrumentalism. Di d it have something t o do with Dewey, who m Rodrig o recentl y ha d describe d t o m e a s a much neglected, an d very brilliant, philosopher? I realized that Dewe y had written tha t experienc e an d proble m situation s wer e wha t calle d upon an d enable d peopl e t o develo p intelligence . I n tha t sense , al l the brilliant constitutiona l scholar s I had read would be unlikely t o have com e up with Rodrigo' s insight. No t experiencin g racia l injus tice as immediately or acutely as a black such as Rodrigo, they might not thin k a s probingly, a s clear-headedly, o r as urgently a s one wh o has suffere d suc h bigotry . I wondered i f thi s solve d th e proble m o f "racial voice" and justifie d resistin g imperial scholarship , th e domi nation o f civil rights theory deplored by some minority-race writers. Did i t validat e th e uniqu e insight s o f scholar s o f color , o r wer e w e just as likely to succumb t o the intellectual an d moral sin s of sloth , lazy thinking, cowardice, and co-optation as anyone else? Once again , I realize d wha t goo d fortun e I ha d t o b e a teacher , exposed t o mind s suc h a s Rodrigo's . I pulle d dow n th e tra y tabl e from th e sea t i n fron t o f m e an d prepare d t o wor k o n th e speec h I was t o delive r th e nex t day , takin g pleasur e i n th e though t tha t Rodrigo wa s no t unique—man y African-America n student s an d ju nior facult y ha d th e sam e talent , th e sam e insigh t o f m y frien d an d protege—that ther e wer e man y Rodrigos , al l o f the m growin g up , waiting to take their places in the world.

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In Which Rodrigo and I Meet by Chance at the New Professors' Conference and I Learn of a Recent Event at His School I ha d jus t pu t dow n m y paper s fro m th e tal k that , a s on e o f thre e graybeards, I ha d jus t give n t o a roomfu l o f eage r ne w professor s when a familiar fac e materialized in front o f me. "Rodrigo! I didn't see you in the room. Where were you sitting?" "Over there," my young friend an d protege replied, "behind Henry Abercrombie. He' s a giant—I' m no t surprise d yo u didn' t se e me . That was a great talk. " "Thanks," I said. "The y calle d m e u p at th e las t minute . I didn' t have much time to prepare. Have you been here for the entire confer ence?" "I have. I missed it last year. But my dean is good about paying for this sor t o f thing . Sh e sent bot h o f us ne w professors—Barney, ove r there, and me." "It's a lot different tha n when I was starting out," I said. "We were sent straigh t int o th e classroo m wit h th e caseboo k an d our notes. It was sin k o r swim—n o teachers ' manuals , n o conference s lik e thi s one, and often n o older hands t o give us advice. Most o f us were th e only professors o f color at our schools. Do you have any company i n that respect at your school?"

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"Barney is Asian/' Rodrig o said. "We get along great, even thoug h he teache s tax . An d there' s Elaine , th e assistan t dean . She' s blac k and teaches professional responsibility. " "Not bad," I replied. "But this session looks like it's breaking up." I pointed to the crowd starting to straggle out of the auditorium. Th e conference staf f wa s alread y bus y changin g th e nam e tag s o n th e speakers' table in preparation fo r th e next session . "D o you want t o go somewhere for a drink or a bite to eat?" "I'd love to," Rodrigo replied with alacrity . " I got up early for th e constitutional la w session and missed breakfast. I was going to go to the one on networking, but I'd much rather talk with you. " As we filed ou t o f th e conferenc e room , I asked Rodrig o ho w h e liked his new job. "It's great, " h e said . " I lov e th e students . I' m teachin g tw o ne w preps, but I have this terrific researc h assistant. It looks as if we may actually get some writing done. Maybe you and I can talk about tha t later. Bu t somethin g curiou s happene d jus t las t wee k tha t I' d lik e your opinion on. Perhaps we could discuss it over dinner. " "I'm famished, " I said. "Publi c speakin g alway s doe s tha t t o me . Have you found a good place to eat around here?" "There's a decent sandwich shop up on the mezzanine. But yesterday Barney and a few o f us went t o this little Middle Eastern restau rant a couple of blocks away. The food is good and the prices reasonable. I think they start serving dinner at five." "Middle Easter n sound s goo d t o me, " I said. "So , what happene d at your school?" Rodrigo fell silen t fo r a moment a s we rode down i n th e elevato r in th e compan y o f a fe w stranger s an d on e o f m y acquaintances . When we got out, he continued. "It concerns the way I got appointed. I'm no t worrie d o r upset . Bu t I thought i t wa s curiou s an d mad e a note t o as k yo u abou t i t sometime . B y the way , di d yo u kno w yo u were not listed on the program?" "I spok e las t year, " I explained , "bu t thi s yea r the y ha d a last minute cancelation . I agree d t o hel p the m out , an d no w I' m gla d I did. I'll get to do two of my favorite things—ea t Middle Eastern foo d and talk with you! " We set ou t dow n th e crowde d cit y sidewalk . " I can vouch fo r th e food," Rodrig o said , "bu t I don't kno w ho w muc h you'l l ge t ou t o f

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the conversatio n becaus e it'll be mostly abou t me . The inciden t di d get m e thinking , though , abou t th e whol e issu e o f merit . We'v e talked about thi s a little before, 1 but m y thoughts have gone further , thanks to the incident I'm about to recount. " "I'm sur e you'l l notic e this , Rodrigo , i f yo u haven' t foun d i t ou t already. W e olde r hand s ge t jus t a s muc h fro m ou r younge r col leagues as they do from us. Our conversations over this last year have stimulated man y thought s i n m y mind , an d no t a few publications . Sometimes I think you're th e mentor and I'm th e pupil." Rodrigo waved aside the compliment. "Wha t happened concerns a colleague of mine named Kowalsky—an interestin g guy from a poor background. He' s got a brilliant la w schoo l record and terrific publi cations despit e bein g i n onl y hi s thir d yea r o f teaching . Kowalsk y came t o m y offic e th e othe r day . It' s n o secre t tha t he' s conserva tive—the sponso r of the Federalist Societ y at my school, in fact. But he's a nice guy. When I started teaching , h e offere d m e his teachin g notes and tried to be really helpful. " "So, wha t di d yo u lear n fro m you r conservativ e an d presumabl y Polish friend? " "That m y appointment wa s part of the'school's affirmative actio n policy. The y cal l i t a special opportunit y appointment . Nobod y ha d bothered to mention this to me, not even the dean, during the discussions leadin g u p t o m y appointment . Kowalsk y droppe d thi s bomb shell i n th e cours e o f a discussio n w e wer e havin g o n affirmativ e action an d then wa s taken abac k an d apologetic when he discovere d that I hadn't know n about it already. He had offered m y appointmen t as a n exampl e o f th e wa y affirmativ e actio n works . He pointed ou t that h e himself ha d not been eligible for a special appointment eve n though his own parents emigrated t o this country when he was two, were poor , an d live d i n a roug h neighborhood . Meanwhile , I , a s a n African American , was eligible for preferential treatment. " "Sounds like the two of you must hav e had a—how shal l I say?— tense conversation. I hope it cam e out tha t your own credential s ar e also quite impressive." "He already knew that. And it was tense for a minute. Then I told him tha t I sa w n o proble m wit h m y bein g hire d tha t wa y i f th e school used the specia l funds tha t th e president's offic e wa s makin g available t o hir e a n additiona l professo r tha t the y otherwis e woul d not have been able to hire."

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5

"In other words, you didn' t displac e anyone, not eve n the prover bial mor e highl y qualifie d white/ ' I said. "An d di d tha t ge t yo u of f the hook with Kowalsky?" "More or less. At an y rate, we went o n t o have a good talk abou t affirmative actio n an d merit . H e kep t insistin g that , presen t com pany excepted, affirmative actio n is unprincipled because it gives the edge to someon e o n th e basi s of a morally irrelevan t factor , namel y race. He also worried tha t i t would en d up stigmatizing eve n profes sors o f colo r lik e mysel f becaus e everyon e woul d assum e w e ha d inferior credential s an d di d no t reall y deserv e ou r professorships . I t also coul d caus e tension s betwee n white s an d black s becaus e th e former woul d assum e tha t wheneve r the y los t ou t o n a n appoint ment, job, or other opportunity, it must have been because a black or other minority person won out." 2 "These ar e th e standar d arguments, " I observed . "An d a s yo u know, they all have answers. 3 Oh, here we are." We were both silen t as we entered the small, homey restaurant. The maitre d' ushered us to a booth decorated with Persian bric-a-brac. We seated ourselves, and Rodrigo continued as follows: "I know, and I gave them. But then the conversation too k a differ ent turn . H e cite d a n argumen t I had hear d mentioned , i n D'Souz a and elsewhere , tha t th e multiculturalis m movement , no t racism , i s driving the recent wave of racist incidents, graffiti, an d name callin g on campuses. 4 According to this view, minority groups who are calling for them e houses, specia l dormitories, an d antihate-speech rule s are misdiagnosin g th e situation . The y hav e onl y themselve s t o blame—or, mor e precisely, affirmativ e action—an d th e cur e is less, not more, of what the y demand. 5 This, in turn, led to a discussion of the whole idea of merit, but we were cut off whe n we both had to go to a faculty meeting. " I mad e a face . "No w there's a n institutio n whos e meri t reall y ought t o come under scrutiny . And I gather you've had some furthe r thoughts on the whole question—merit, I mean?" "I have. Do you have time to listen? Oh, here comes our waiter." We immerse d ourselve s i n th e men u whil e th e waite r stoo d pa tiently. We gave our orders—kabob for Rodrigo, vegetarian couscou s for me—and then continued as follows.

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In Which Rodrigo and I Explore the Connection between Markets and Merit "Professor, hav e yo u eve r notice d ho w conservative s see m t o lov e the First Amendment?" "I have . Bu t no t onl y them . Lot s o f old-lin e constitutionalists , including some who consider themselves liberal, do too. We talked a little abou t thi s onc e before. You see this strang e alliance form ove r hate-speech codes . Conservative s lik e Dines h D'Souz a hat e them , of course. 6 Bu t the y hav e allie s i n moderatel y leftist , progressiv e organizations lik e th e ACLU. 7 Ever y tim e a colleg e think s o f en acting suc h a cod e t o protec t minoritie s an d gay s agains t th e tid e of viciou s insult s an d nam e callin g tha t ha s bee n wellin g u p thes e days, th e conservative s sa y tha t Wester n civilizatio n i s ending , an d the ACLU files suit. It's a n odd alliance, somewhat lik e the way th e religious righ t an d radica l feminist s ofte n fin d themselve s o n th e same side fighting pornography, but, of course, in reverse." "Politics make s strang e bedfellows," Rodrig o added. "I s that ho w the expression goes?" Rodrigo, who had spent the last half o f his life growing up in Italy, sometimes misuse d an expression o r idiom. 8 But this time I nodded. "Exactly right. And what moral do you draw from this , Rodrigo?" After a momen t o f thought , Rodrig o replied , " I wonde r i f yo u saw th e recen t New Republic cove r stor y tha t asked , 'I s th e Firs t Amendment Racist? ' " 9 I indicated that I had. "The author's answer , of course, was no and that minoritie s an d others clamoring for hatespeech regulations are deeply misguided. " "And I gather that you think tha t it is—racist, I mean?" "Not inherently," Rodrigo responded. "Bu t I do find intriguing th e way in which conservative s an d traditionalists, people who basically don't wan t black s changin g thei r positio n to o rapidl y (a t leas t a s a group), ar e enamore d o f th e Firs t Amendment . Conside r tha t throughout history , to p satirist s an d commentator s hav e scrupu lously reserve d thei r sharpes t sling s an d arrow s fo r th e hig h an d mighty, fo r king s and other public official s wh o abused thei r power , and s o on . Never , o r rarely , di d the y us e thei r wi t t o pu t dow n th e halt, the lame, and the poor." 10 (Ah, he knows that idiom, I thought. He catches on fast.) "A roo t wor d o f humo r i s humus, " I interjected . "Lik e earth .

Merit and Affirmative Action 67 Humor bring s th e powerfu l dow n t o earth . That' s a principal func tion o f satire. The Roma n emperor s employed slave s to follow the m during victory parades an d celebrations, whispering, Tho u ar t but a man.' Nobilit y o f al l age s employe d jester s t o moc k thei r manner isms and prevent the m fro m becomin g too enamored o f themselves . But I gather yo u thin k al l thi s ha s somethin g t o d o wit h th e Firs t Amendment/' "It does. The First Amendment i s a marketplace mechanism , lik e many others . On e o f it s function s i s t o assur e tha t life' s victor s continue winning—in thi s case, speaking more effectively tha n oth ers and thereby convincin g themselves tha t thei r positions ar e right, the best. The to p satirists, Moliere, Swift , Twain , an d in mor e mod ern times , columnist s lik e Russel l Baker , hav e carefull y avoide d making fu n o f th e poor , minorities , an d thos e o f lowe r statio n an d power tha n themselves . Thes e individual s ar e alread y lowly , lik e humus, dow n t o earth . Bu t th e Firs t Amendmen t can' t captur e thi s simple mora l intuition . Indeed , I believe on e o f it s function s i s t o blind us to this asymmetry, t o the way in which vituperative speec h aimed a t th e poor , gays , o r minoritie s stand s o n a ver y differen t moral footing from criticis m of government o r the powerful. " "The Firs t Amendmen t treat s al l speec h alike . Yo u hav e jus t a s much righ t t o criticiz e th e Italia n o r U.S. government a s a campu s bully has to tell you to go back to Africa. " "An exampl e of decontextualized , neutrality-base d jurisprudence , as we discussed before," I added. "And deeply mistaken. " "One coul d argue, " Rodrig o added , "tha t thi s typ e o f pervers e application of First Amendment principles violates the equality principle. It makes us dumb , deprives us of the ability to see difference s that matter , lik e th e on e I jus t mentioned . Treatin g unequal s a s though the y wer e equa l i s jus t a s muc h a violatio n o f equalit y a s treating equals unequally. It also enables life's winners to think the y won fai r an d square . When th e campu s bull y notice s tha t nex t yea r there ar e fewer black s o n campu s because the y have droppe d ou t o r transferred t o a less racist institution . . . " "Like Morehouse," I ventured. "Exactly," Rodrig o continued . "Resegregatio n i s a rea l problem . Black colleges are increasing enrollment just as the numbers of black students i n large , white-dominated college s ar e declining. 11 Parent s of colo r ar e optin g t o sen d thei r son s an d daughter s t o historicall y

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black college s wher e th e climat e wil l b e les s racist . An d on e o f th e reasons i s the reig n of terro r an d catcall s tha t ou r First Amendmen t purist friends insis t continue unabated. " "A friend o f mine is doing that very thing/' I mused. "Sending his kid t o Morehouse , tha t is . Ye t ou r ACL U friend s insis t tha t hat e speech remai n unregulated . Th e Firs t Amendmen t mus t b e a seamless web. 12 Bu t w e wer e talkin g abou t merit . I assum e yo u thin k there is a connection." "Oh yes," Rodrigo resumed, furrowin g hi s brow slightly. "Le t m e bring mysel f bac k o n track . I was goin g t o mak e th e poin t tha t al l formalist devices , lik e merit , fre e speech , an d th e economi c fre e market of trades and exchanges, serve a similar purpose. They decontextualize the transaction and so enable the powerful t o exclude fro m consideration pas t actions , lik e slaver y an d female subjugation , tha t have effects eve n today which prevent som e from enterin g the com petition o n equa l terms. 13 In fact, th e Firs t Amendmen t i s a specia l case of merit. The guarantee i s designed t o winnow ou t meritoriou s from nonmeritoriou s speec h an d ideas . Supposedly , throug h a clas h of ideas, the truth, th e most robust idea of all, will emerge. 14 Thus, if one cultur e i s dominant , i t mus t deserv e t o b e tha t way . Ou r idea s competed agains t thos e other , mor e easygoing , one s an d won . I t was a fair fight . Meri t serve s th e sam e function i n slightl y differen t spheres." "It doe s this b y consolidating advantage . Any society' s elit e class will deem wha t the y d o well a s constitutive o f merit , thu s assurin g that thei r ow n position s becom e eve n mor e secure . Meri t i s a re source attractor . Thos e wh o hav e i t mak e mor e mone y an d gai n more power . The y us e tha t mone y an d powe r t o purchas e mor e increments of merit for themselves and their children." 15 "The rich get richer. " "Not always, " I interjected. "The y sen d thei r childre n t o the bes t schools, where som e flunk out . But others go on to be rich. The gap between th e have s an d th e have-not s get s greate r ever y generation , one reason being this host o f seemingl y neutral market-typ e mecha nisms tha t assur e tha t everyon e ha s exactl y th e sam e chance—al l the while ignorin g that i t take s a microphone t o spea k effectively , a college education to become a neurosurgeon, an d so on." "Merit supplie s a defens e t o a n equa l protectio n challenge, " Ro drigo added. "If society decides to distribute a good to A and not to B,

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courts will sustai n thi s decisio n i f th e government ca n sho w tha t A had more merit than B, that A was more deserving. But what you are saying is that th e preexisting level of merit may be skewed, and tha t supposedly neutral mechanisms prevent us from seein g this." "Not onl y seeing, but eve n looking for it," I replied. "Ther e is no reason to . If A is mor e deservin g o f th e jo b tha n B , why shoul d w e even inquire into how he or she came to deserve it? He may have had greater opportunitie s tha n B , may hav e ha d mor e solicitou s parent s or teachers . Better-know n peopl e ma y hav e writte n hi m letter s o f recommendation. When he was a teenager, perhaps he got a summer job o r internshi p throug h a famil y connection . A friendl y teache r may hav e propose d a n extr a credi t assignmen t tha t enable d hi m t o change a B plus int o a n A minus, o r helped hi m ge t int o a n honor s section of a class that a n equally talented black o r working clas s kid might not have gotten into." "Yet white people do not se e it tha t way," Rodrigo replied. "Any time a black gets into a special program o r a law school by means of an affirmative actio n program, they are certain that this i s an affron t to principle , tha t i t i s unfai r t o innocen t whites . Eve n ou r libera l defenders conside r affirmative actio n a perilous program, designed to work for a short time only. They regard it as fraught with many risks, such as the stigmatization o f able blacks." "So Rodrigo, " I summarized , "yo u thin k ther e ar e tw o kind s o f racism. Th e ol d kin d i s over t an d take s th e for m o f law s an d socia l practices tha t expressl y trea t black s an d other s o f colo r wors e tha n whites. This typ e o f racism migh t b e typified b y whites-only drink ing fountains , o r universit y admission s practice s a t man y school s that exclude d al l but a handful o f blacks until abou t 1965 . But ther e is anothe r kin d eviden t i n faciall y neutra l law s an d practice s tha t require th e decisio n make r t o ignor e history , context , an d thing s that everybod y know s ar e important. An d you thin k tha t meri t i s a prominent exampl e o f suc h a mechanism , alon g wit h other s tha t take the form o f market-type, hands-off fairness. " I paused t o se e what Rodrig o woul d say . He nodded , bu t quickl y added: "I know what you'r e going to say, Professor. I'v e made only a start. And you're right. Kowalsky pointed tha t out—m y argumen t i s merely formal. I must g o on and give affirmative reason s why meri t often serve s dishonorabl e ends . H e kep t sayin g tha t meri t could deflect u s fro m seein g importan t things , includin g thos e tha t li e i n

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the past . Bu t h e sai d tha t h e didn' t thin k ther e wer e man y suc h things today, and that, o n balance, a merit-based schem e is apt to be fairer to minorities than one that relies on discretion, like affirmativ e action. He said my categories were not exclusive, and that he personally knew people without a racist bone in their bodies who nevertheless believed in merit. He also pointed out how his father an d mother rose fro m abjec t poverty . H e kep t sayin g h e mean t n o offens e t o me, bu t affirmativ e actio n coul d onl y produc e lazy , unmotivate d beneficiaries—and sullen , resentfu l white s convince d tha t minorit ies ar e responsible fo r ever y setbac k an d defea t the y suffe r i n life. 16 He als o inquired whethe r I felt stigmatize d o n accoun t o f th e wa y I was hired and seemed surprised when I said no." "Of course , yo u di d graduat e nea r th e to p o f you r clas s a t th e oldest la w schoo l i n th e world , hav e a n LL.M . degre e fro m a to p U.S. institution, an d are the winner o f two competitions for studen t writing.17 Still, Kowalsky sounds like a great foil. " Rodrigo waved asid e my attemp t a t praise . "La z keep s m e on m y toes, make s m e think—jus t a s yo u do , Professor . Oh , an d di d I mention that he's not opposed to speech codes? He says racist speec h is disgusting and has nothing to do with th e First Amendment—lik e many conservatives , h e als o support s regulatin g pornography . Al l this eve n thoug h h e oppose s affirmativ e actio n an d think s i t lie s a t the root of all our current troubles . If you've got the time, I could run past yo u som e thing s I'v e bee n thinkin g abou t i n th e wak e o f ou r discussion." I nodded enthusiastically , remindin g m y brillian t youn g protege , once again , ho w muc h I go t ou t o f ou r conversations . I sa t bac k expectantly.

Rodrigo's Three Reasons Why Merit Often Serves Dishonorable Ends, Advances Racism, and Deepens Minorities' Predicament "My thought s mainl y hav e t o d o wit h th e connectio n Kowalsk y persuaded me to make between merit and discrimination. Why don't we tak e the m u p on e b y one . Oh , here' s ou r food! " W e were silen t while the waiter served our sumptuous-looking dinners .

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"This look s great/ ' Rodrig o said . "Usuall y I like tryin g differen t restaurants, but this one was so good last time I'm glad I came back." When I beamed my own approval, he continued: "A s I mentioned, my argument s fal l int o thre e groups . On e se t o f consideration s i s analytical and has to do with the way merit operates, on a discursive and conceptua l level , t o strengthe n th e han d o f th e powerfu l a t th e expense of the disempowered. A second has to do with th e after-the fact qualit y o f neutral , marketplace-typ e mechanisms , tha t is , th e way the y enabl e life' s winner s t o justif y th e statu s quo . The y ar e almost impossibl e t o appl y evenhandedly . An d a fina l critiqu e i s historical, consisting of showing connections between today's merit ocrats and those of former, mor e racist times. How's your couscous?" Rodrigo's Firs t Argument: Merit's Invisible Nonformality an d the Way This Guarantee s th e Continue d Ascendanc y of Elite Groups "Great, fo r vegetaria n fare, " I replied . "Yo u probabl y kno w m y doctor told me to cut down on meat. It's hard, especially when you're traveling. S o I'm gla d yo u brough t m e here . Eve n i n m y ol d meat eating days I loved Middle Eastern food. " Rodrigo gave me a sympathetic look. "Giannina is mostly vegetarian, too . So, I have some idea of what you're going through. Want t o hear the first argument? " "Whenever you'r e ready, " I said, takin g a forkful o f m y steamin g hot concoction . "The first problem I have with th e idea of merit has to do with it s majoritarian quality . Writer s contributin g t o th e critiqu e o f norma tivity in legal thought, amon g others, have pointed thi s out. 18 Meri t is wha t th e victor s impose. 19 N o conquerin g peopl e eve r too k a close look at the conquered, thei r culture, ways, and appearance, and pronounced the m superio r t o thei r ow n versions . Thos e i n powe r always mak e tha t whic h the y d o best th e standar d o f merit . Thi s i s true at all times in history, including our own. The SAT, for example, has tes t item s abou t toboggans , lacrosse , polo , an d othe r activitie s prominent i n white , middle- , an d upper-clas s culture. 20 Graduat e programs ofte n emphasiz e linear , rationalisti c though t ove r othe r kinds, and so on."

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"There's the famous chitlin s test/' 2 1 1 mused, half-seriously, won dering if Rodrigo , who gre w up i n Italy but wa s half Africa n Ameri can, had heard of such a thing. He smiled appreciatively an d went on . "Not onl y does this aspec t of meri t disadvantag e th e poor , minorities , an d anyon e els e whos e upbringing and experience differ fro m th e norm, it also can disadvantage women , man y o f who m hav e strength s an d approache s tha t differ fro m thos e of thei r equally talente d an d successful mal e coun terparts. A ma n migh t choos e t o si t dow n wit h a calculato r an d a legal pad while a woman might star t by thinking and talking about a decision with others. The man might believe that the logic stemming from hi s own reasoning skills can solve the problem without consul tation wit h others . H e migh t als o believ e tha t h e an d th e other s around hi m wil l b e similarl y affecte d b y th e decisio n h e makes . A woman, o n th e othe r hand , ma y ten d t o believ e tha t a collectiv e decision i s th e mos t likel y t o succee d an d t o be accepted b y others , who ma y o r ma y no t b e touche d b y th e decisio n i n th e sam e wa y that sh e is. But because me n ten d t o b e in charg e o f mos t thing s i n this world, including hiring and admissions decisions, they will look for th e logica l an d analytica l skill s tha t hav e worke d fo r them . No t surprisingly, the y will find these skills predominantly i n other men . When a woman has those skill s tha t me n dee m important, sh e will, of course, be hired, but onl y because she has this male-defined se t of skills. Frequently th e woman's skill s will include th e ability t o read and understan d th e peopl e sh e ha s t o wor k wit h an d t o motivat e coworkers an d subordinates . Thes e abilitie s ar e necessar y fo r th e smooth operatio n o f th e workplac e an d th e campus , bu t i t i s ofte n left t o chanc e tha t the y wil l resid e i n th e sam e people wh o posses s the leve l of logical an d analytical skill s demande d by the evaluativ e committees. Therefore , impositio n o f th e mal e standar d no t onl y discriminates agains t women, i t als o robs the group or institution of the diversity that makes it effective. " "I thin k yo u an d I discusse d somethin g simila r before, " I said , straining to remember. 22 "Di d we not agre e that tw o candidates, one white and one black—or one male, one female, for that matter—wil l often compet e fo r th e sam e position ? Bot h ar e equall y capabl e o f doing a stellar job . But th e interview , o r job test, reward s th e candi date wh o ha s th e greates t stor e o f cultura l capital , th e on e wh o soaked it up so easily at his father's o r mother's knee. The household

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had the right kind of music and books. The dinner table conversatio n taught precisely th e mannerisms, conversationa l patterns, an d smal l talk skill s that th e employe r finds comforting, familiar , an d reassur ing. The mor e conventiona l candidat e get s the job , even thoug h th e other on e coul d hav e don e jus t a s well , mayb e better . Thi s i s a n aspect of your majoritarian critique , is it not?" "It is, " Rodrig o replied . "An d i t neve r cease s t o amaz e m e ho w tenaciously elite groups resist a realignment o f merit that you would think woul d benefi t the m a s well. Racism—an y for m o f irrational ity, really—i s economicall y inefficien t an d bad for a society. S o is a merit schem e tha t exclude s an d discourage s th e contribution s o f a major sector . Whic h lead s m e t o th e secon d observation , tha t meri t is, basically , whit e people' s affirmativ e action , a s w e onc e pu t it. 23 Oh, bu t befor e I forget, I tol d Kowalsk y al l this , an d d o yo u kno w what his answer was?" "No, what?" "He said that all this may be true, but tha t formal racis m ended in 1964.24 Now, the only kind lies in attitudes, unconscious predispositions, that sort of thing. Formally the playing field is level, and if th e merit criteria are biased, the solution is to change them, not advocat e dangerously inegalitaria n measure s lik e affirmativ e action—which , by the way, he insisted on calling 'reverse discrimination.' " I winced. "And how did you deal with this objection? " Rodrigo's Secon d Argument: Merit's after-the-Fact , Apologetic Functio n "Historically. I pointed ou t tha t th e emphasi s o n meri t bega n i n earnest i n 1964 . He got th e connectio n quickly . Forma l racis m wa s phased out , veile d o r nonformal racis m cam e in—racism unde r th e guise o f excellence , fairness , equa l opportunity , al l th e thing s tha t make u p th e constellatio n o f attitude s an d standard s w e cal l 'merit.' " "That's good, " I acknowledged . "An d i f memor y serve s m e cor rectly"—I was much older than Rodrigo—"that is more or less what happened. Befor e 196 4 whit e male s benefited fro m old-fashione d laws tha t cu t dow n th e competitio n b y eliminatin g black s an d women. The y als o benefite d fro m old-bo y network s b y whic h the y helped eac h other . Th e event s o f 196 4 change d jus t th e firs t part —

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the othe r remaine d intact . I n fact , meri t toda y i s a principal mean s by whic h empowere d people , one s wh o hav e bee n t o th e bes t col leges, take n th e sam e test s together , kno w eac h other , an d tal k th e same way , ensur e tha t the y an d thei r class remai n i n charge . It' s especially importan t toda y becaus e th e populatio n i s changing . Whites are no longer going to be a numerical majority. I n some parts of the country, they are already in the minority. Thus, it's even more important tha n befor e t o hav e th e mechanism s t o ensur e tha t thei r class replicates itself i n circles of power." "Not onl y that," Rodrig o added. "Today , condition s ar e different . The er a of economi c growth i s over. There i s a shrinking pie. Thus, merit, whic h i s a principal measur e o f distributiv e justice , assume s even greater prominence." "I'm no t sur e I follow you, " I said. "Wit h a shrinking pie, isn't i t even mor e importan t t o hav e clear-cu t rule s an d standard s t o deter mine ho w tha t pi e i s t o b e distributed ? Perhap s you r proble m wit h merit i s no t wit h th e concep t itself , bu t wit h th e wa y i t i s applied . Merit i s a kin d o f formalization. 25 Man y o f u s hav e writte n o f th e connection betwee n fairnes s an d formality, th e way in which court room rules—relate d t o th e presentatio n o f evidence , allowin g bot h sides a prescribe d tim e t o speak , an d s o on—promot e fairnes s an d reduce prejudice. They confine discretion , which could easily be used against the minority, the woman, or other disempowered litigant. " "Good point," Rodrig o conceded. "Th e trouble is that meri t illus trates th e wron g kin d o f formality . It s standard s exclud e morall y relevant data , particularl y event s tha t happene d i n th e past . The y prevent u s from considerin g another principle of distributive justice , namely reparations or making amends. Blacks, Chicanos, and Native Americans wer e formall y oppresse d throughou t ou r histor y b y th e many mechanism s wit h whic h yo u an d I ar e familiar . Th e meri t advocate says, 'Let's ignore all that and start being perfectly fair righ t now. How high did you score on the SAT?' " "An examinatio n that , a s w e said , test s onl y a narro w rang e o f skills, mainl y o f linear-typ e thought . Whit e folk s ar e perfectly will ing to look t o the past if that i s where their merit badges lie, but no t to ours if those pasts show disadvantage and hurdles surmounted. Of course, i f thei r pas t include s a grandfathe r wh o immigrate d fro m Ireland o r a poo r Balti c nation , they'l l remin d u s o f tha t ove r an d

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over, overlookin g th e busines s dynast y th e famil y establishe d i n between." "A dynast y tha t ma y hav e take n rea l energ y an d talen t t o se t up," Rodrig o pointe d out , "bu t tha t nevertheles s wa s aide d b y th e advantage white skin conferred. " "So you're saying we can't be concerned just with distributing th e pie fairly. W e have t o as k who se t th e table , invite d th e guests , an d made the place cards." "Exactly," Rodrig o exclaimed . "An d th e plac e car d exampl e i s perfect. Conservative s woul d probably b e irritated a t th e suggestio n that meri t i s comparabl e t o etiquette . Bu t i n som e way s i t is . Al l cultures hav e utensil s fo r eating , bu t the y var y an d n o on e se t i s necessarily better than any other. (Rodrigo indicated a group of diners on the other side of the restaurant wh o were seated on cushions an d using thei r fingers instea d o f th e mor e usua l chair s an d silverware. ) All hav e way s o f assignin g place s t o guests . I n some , traditio n pre scribes wh o sit s where ; i n others , plac e card s ar e used . Muc h th e same i s tru e o f merit . Eac h societ y i s organize d i n a particular wa y and has rules—which the y call merit—to ensure that their organizational syste m continue s undisturbed . Bu t th e organizatio n an d th e assignment o f role s is , t o a ver y larg e extent , arbitrary . Mov e th e basketball hoop up o r down si x inches an d you radically chang e th e distribution o f wh o has merit. 26 Ad d item s relate d t o love , compas sion, or intercultural awarenes s an d you have a completely differen t SAT." "But Rodrigo, if two candidates have exactly equal merit for a job, and one is white and the other is black . . . " "They're not equal," Rodrigo interjected. "Th e black probably has come further. The y are equal only if you arbitrarily decid e that over coming advantag e i s no t a componen t o f merit . Man y white s ge t inheritances; mos t peopl e o f colo r d o not. White s ofte n receiv e art fully crafte d letter s of recommendation. When a teacher proposes an extra credi t assignmen t tha t allow s the m t o receiv e a n A-minu s i n an honors course, a neighbor gives them a summer job, or their fathe r stakes thei r firs t hom e mortgage , the y conside r tha t normal , no t a part of race and class advantage. Yet it is. You might eve n consider it a for m o f affirmativ e action— a syste m o f benefit s an d resource s awarded without regard to merit. "

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"There ar e exceptions/' I pointed out . "Th e black middl e clas s is growing. An d th e minorit y old-bo y networ k look s afte r it s own , a s well." "I kno w ther e ar e exceptions/ ' Rodrig o replied . "Bu t al l to o few . Ones o f anothe r kind—wha t I cal l 'cultura l exceptions'—com e u p much more often. " "I'm not sure what you mean by the term. " "I thin k w e wer e speakin g o f thi s before . Tak e a cas e clos e t o hand. La w schoo l teachin g candidate s ar e suppose d t o b e hire d because of thei r teachin g an d scholarl y potential . But merit, lik e mos t legal terms , get s applie d agains t a backgroun d o f cultura l assump tions, presuppositions, understandings, and implied exceptions, most of which operat e against ou r people. 27 Return t o our tw o candidate s for a faculty position , on e white, th e other black. Let's suppose both served o n th e la w revie w an d dutifull y wrot e th e sam e well-re searched note , heav y o n cas e analysis. Both made th e finalist roun d in moo t court , an d s o ar e likel y t o b e goo d teacher s a s well—t o whatever extent one can predict that. " "But the white gets the job, right?" "Usually, yes . I t turn s ou t tha t th e whit e ha d a mor e pleasan t demeanor, wa s deeme d bette r a t smal l talk , wen t t o a well-know n private school . The black seeme d tighter , a little intense . The whit e comes recommende d b y a mor e well-know n professor . Th e whit e ends up getting the job." "But isn't the solution, then, to assure that true meritocratic criteria ar e applie d an d no t thos e othe r self-serving , counterfei t ones ? Wouldn't i t b e better t o insis t tha t appointmen t committee s stead fastly refus e t o look at these other race- and class-based traits—one s that d o no t bea r a t al l o n teachin g fitness, bu t simpl y rende r th e candidate mor e familiar , mor e comfortable , mor e lik e one' s ow n kind?" "That woul d b e a start, " Rodrig o conceded . "Bu t th e numbe r o f presumptions an d implie d exception s i s virtually infinite , includin g things lik e dress , hair , intonation , demeanor , sport s played , an d s o on. One' s checklis t woul d hav e t o b e ver y lon g indeed . An d then , there are all those 'common-sense' and 'emergency' procedures." "I'm not sure what you mean." "Imagine a hirin g committe e tha t start s ou t th e seaso n entirel y fair-minded an d meritocratic. It draws up a picture of the ideal candi-

Merit and Affirmative Action 77 date—Supreme Cour t clerk , graduat e o f a to p school , autho r o f a superbly crafted studen t note. It reminds itself, over and over, that i t will hire , o r a t leas t tak e seriously , an y candidat e tha t meet s thos e specifications, whit e or black. It posts ads and sends letters to facult y and alumni around the nation telling them of its needs." "And you'r e goin g to say, " I interjected, "tha t suc h a committe e will hire very few folks of color." "It wil l hir e fe w candidates , period, " Rodrig o replied . "Ther e ar e only a handful o f such candidates out there. A few come through an d interview, but tur n their offers down—eve n th e black candidate, th e superstar wit h Thurgoo d Marshall-typ e credential s wh o unexpect edly decided to go to work for a community lega l organization. No w it i s February , slot s remai n open , includin g th e positio n teachin g Corporate Ta x an d Securitie s tha t the y ar e desperate t o fill. B y now there ar e fe w candidate s o n th e marke t wit h th e superstar , forma l credentials, th e written-dow n one s tha t th e committe e starte d wit h in September . Bu t ther e ar e severa l wit h credential s slightl y lowe r than that . The y stil l haven' t foun d jobs , but ar e quite abl e lawyers, intelligent people . And the y ar e known t o th e school' s faculty . On e of the m remember s Joe , th e smar t lawye r h e practice d wit h a t th e big firm; anothe r remember s Martha , wit h who m sh e clerke d fo r Judge X . The schoo l make s a phon e call , a n intervie w i s arranged , and a month later Martha or Joe has a job." "Despite lackin g th e school' s forma l criteria—th e Pau l Freund / Thurgood Marshall one s it starte d ou t with. " I was silen t fo r a minute, absorbing Rodrigo's point. Then I added: "And all the candidate s hired the second way are white, right?" "Exactly," Rodrig o replies . "Ever y blu e moon , a la w schoo l wil l hire a Thurgoo d Marshall-typ e blac k unde r th e superstar , forma l criteria. Althoug h eve n then , hal f th e faculty an d student s wil l per sist i n believin g h e o r sh e go t a helping hand . Bu t folk s lik e u s ar e never hired the second , informa l wa y th e school resorts t o in Febru ary whe n i t i s unde r pressur e an d th e dea n i s screamin g tha t th e hiring committe e ha s no t filled th e Trust s an d Estate s o r th e Ta x slot. That's the trouble with nonformal processes—they favor people we know , peopl e wh o ar e lik e us . An d i n th e hirin g committee' s case, those people are white." "The ne t resul t i s tha t whit e peopl e hav e tw o chance s o f gettin g hired," I summarized, "b y being superstars and satisfying th e ostensi-

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ble, on-the-book s hirin g criteri a tha t institution s star t ou t wit h i n September o r by means of the informal rout e the school resorts to in February or March when th e season is almost over and the harvest i s not yet in. " "Every now and then a school hires one of us with credential s just short of the Thurgood Marshall-type—say, somebod y who graduated fifteenth i n hi s o r he r clas s an d ha d a gilde d thre e year s a s sta r trial attorne y i n th e distric t attorney' s office . Whe n thi s happens , everyone—including m y frien d Kowalsky , I' m afraid-—wil l g o around mutterin g abou t th e iniquitie s o f affirmativ e actio n an d un fairness t o innocent whites." "I've see n thi s happen, " I said. "Sometime s I try a second tack . I point ou t tha t man y o f thei r mos t esteeme d colleagues , hired unde r either the meritocratic criteria or the second kind, fall woefully shor t on an y standar d o f professiona l excellence . On e hasn't writte n any thing in fifteen years . Another i s such a notoriously weak classroo m teacher that his enrollments are close to zero." "Hmmm," Rodrig o said. "I think we have a couple like that at my school. And what happens when you point this out?" "They alway s sa y tha t there' s a reason. Th e firs t professo r wrot e the definitiv e wor k o n nonprofi t corporation s twenty-fiv e year s ag o and is obviously germinating another , equall y good one. The notori ous classroom teacher is simply demanding, or else has other talents, perhaps deliverin g grea t annua l lecture s t o th e bar , whic h i s goo d public relations for the school." "So meri t criteri a en d u p bein g applie d agains t a hos t o f back ground forces—meanings , excuses , understandings , practices , no tions o f wha t an y commonsens e institutio n woul d do—tha t favo r whites. Whites were in a position of power long ago, years before th e merit criteria were written into the faculty code . That code naturally is interprete d agains t th e backdro p o f thes e forces . An d so , eve n the most scrupulousl y fair-minded appointment s committee end s up hiring whites and passing over blacks." "I onc e serve d o n th e university-wid e admission s committee . I t was fascinating . I t turn s ou t tha t m y university , lik e mos t others , has a host of express quotas and a like number of preferences:28 dropkickers, quarterbacks , legac y candidate s whos e parent s ar e ap t t o give money if Johnny or Sally gets in, musicians, ROTC scholarshi p holders. Man y o f thes e individual s hav e SAT s lowe r tha n thos e o f

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the straigh t admits. 29 Then there' s th e geographi c preference. 30 Ou r school like s t o hav e student s fro m fa r away , eve n thoug h the y al l watch th e sam e T V programs, stud y fro m th e sam e textbooks , an d write the same biographical essays . Hardly anyone sees these quota s and preference s a s immoral , unfai r t o innocen t nondropkickers , o r worries that the y might stigmatiz e th e poor quarterback wh o enter s with credential s lowe r tha n thos e o f th e Nationa l Meri t scholar . None i s see n a s a derogatio n o f th e might y principl e o f merit , al though that is what they are." We were both silen t fo r a minute whil e th e waiter picke d u p ou r empty plate s an d aske d whethe r w e woul d lik e t o se e th e desser t menu. We looked at each other, Rodrigo nodded enthusiastically, an d I said, "Let's have a look." A minute later I said to Rodrigo, "You seem to have given quite a bit of thought t o this. But you said you had a series of consideration s concerning th e wa y meri t criteri a ar e applied . Th e one s yo u hav e mentioned s o far see m t o me t o be intrinsic t o th e concep t itsel f o r to the language game of which it is a part. I'd love to hear your ideas regarding merit's application . Bu t before w e move on , i s ther e mor e you have to say about the first part, the discursive or logical aspect?" "No, I' m jus t abou t read y t o mov e on, " Rodrig o said , lookin g around t o se e i f th e waite r wa s nearby . I marvele d a t m y youn g friend's appetit e whil e wrestlin g wit h m y conscienc e ove r whethe r to have dessert or not. "Just one more thing." "What is it?" "We previously observed that conquering nations, like elite groups today, alway s impos e thei r ow n meri t criteri a o n th e peopl e the y subjugate." I nodded . "Idea s abou t meri t an d notion s o f cultura l superiority hav e alway s bee n use d t o justif y conques t an d colonial ism. Recall , fo r example , th e whit e man' s burde n o f Kipling , th e Conquistadores wh o brough t th e blessin g o f Christianit y t o Nativ e Americans, th e wrat h o f Alla h tha t fuele d th e invadin g Mooris h armies, and, i n ou r time , banana-boat diplomac y tha t installe d pup pet regime s i n Lati n Americ a t o brin g th e peopl e th e miracle s o f democracy." "Yes, go on." "What I wanted t o mentio n i s tha t les s idealisti c nations , thos e with less normative zeal, were much mor e reluctant t o impose thei r own meri t criteria , and , a s a result , wer e les s oppressiv e victors. 31

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The early Romans, for example , did not demoniz e their slaves . They did no t hav e to . Th e Roman s wer e no t Christians , an d s o ha d n o need to paint their slaves as base, unsaved heathens. They did not, in other words , have t o dee m the m normativel y bad , lackin g i n merit . Our society, on the other hand, does need to do so, in order to justif y our ow n ba d acts . Thus, w e demoniz e ou r enemie s i n war , an d ou r own minority populations a s well. We employ backwards reasoning : the subjugate d mus t b e bad, w e treate d the m s o badly. An d w e ar e more pron e t o thi s rationalizatio n tha n a mor e cheerfull y secula r group o f conquerors , suc h a s th e Romans . Merit-base d idea s hel p us liv e comfortabl y despit e th e discrepanc y betwee n ou r ideal s o f brotherhood an d equality an d the reality o f the poverty an d blighte d lives that we see in minority and poor populations all around us. ;/ "Whites hat e meri t plans, " I mused , "whe n the y ar e applie d against them . Schoo l teachers ' union s oppos e meri t plan s wit h a passion. And don't eve n try to get a law faculty t o take seriously th e idea o f doin g awa y wit h tenur e an d evaluatin g ever y professo r o n a year-to-year basis." Rodrigo smile d i n appreciatio n o f m y suggestion , the n said : "That's all I have under the first head . Ready for the application?" "That an d dessert," I said, which made Rodrigo smile even more. Rodrigo's Third Reason : Merit Rule s Disadvantage Minoritie s and th e Disempowere d Eve n When Applied by the Mos t Fair Minded o f Administrator s "Those loo k great, " Rodrig o said , starin g eagerl y a t th e desser t tray. "What's that one?" he asked the waiter. The waiter explained and withdrew after taking our orders, a variegated flan fo r Rodrig o ("The y hav e somethin g simila r i n Italy"), and for m e a banana puddin g tha t th e waite r promise d wa s lo w i n calo ries. After th e waite r disappeare d fro m view , I said, "So , Rodrigo, yo u think tha t meri t operate s t o har m an d disadvantag e minoritie s no t only in its structure, but als o practically, i n the real world? I assume you mea n somethin g othe r tha n th e ordinar y disparat e impac t tha t the Suprem e Court find s insufficien t i n employment setting s excep t when an extremely overgeneral exam is used to screen out, say, state plumbers or custodians." 32

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"I am familiar wit h that line of cases. I was thinking of somethin g even mor e pernicious . Earlier , yo u an d I wer e talkin g abou t th e canonical effec t o f certain words and social practices. There is nothing mor e canonica l tha n merit . A canonica l practic e o r meanin g resists change almost by definition, fo r it is one of the prime mecha nisms we apply to determine when change is desirable." ''That mean s tha t ou r notio n o f meri t i s ver y slo w t o change, " I said . " I agre e wit h that . Loo k ho w laggardl y ou r acceptanc e o f multiculturalism ha s been , an d ho w campu s curricula r refor m ha s sparked such resistance." "In par t that' s becaus e change s i n course s require d an d book s assigned com e wit h th e implie d statemen t tha t thes e ne w author s and subjects ar e worth learning about. Persons who believe that onl y the Western greats are properly on that list naturally protest." 33 "Take a case we discovered at my old school. My friend Al i and I were on a faculty-student committe e charge d with revising the firstyear curriculum. 34 I was th e LL.M . delegate , Al i th e alternate . W e were doin g som e fac t checkin g i n th e placemen t offic e whe n w e discovered somethin g interesting . Th e minorit y students , man y o f whom ha d bee n admitte d unde r affirmativ e actio n program s an d with lower indices, were graduating at virtually the same rate as the rest o f th e class . Not onl y that , the y wer e gettin g job s an d passin g the ba r a t simila r rate s an d eve n makin g mor e money—no t a lo t more, bu t stil l more . Moreover , a slightl y highe r percentag e wer e going int o prestigiou s job s lik e teachin g an d clerkin g fo r federa l judges. Al l th e students , o f course , wer e brilliant , an d virtuall y al l did quite well in late r life . Bu t th e minoritie s wer e doin g as well a s the others and, in some cases, better. All this despite entering credentials tha t were , o n average , considerabl y lowe r tha n thos e o f th e regularly admitted students." 35 "And what moral did you draw from this? " I asked. "I though t immediatel y tha t th e LSA T mus t b e encodin g som e form o f cultura l preferenc e fo r th e whites , wh o ha d highe r score s than th e minorities , bu t ende d u p doin g little , i f any , better . Bu t most of my classmates advanced a different theory. " "What conclusion di d they draw?" "First, the y wer e suspiciou s o f m y figures an d wante d t o kno w where I go t them . Whe n I sai d th e placemen t an d alumn i affair s offices, the y wer e dumbfounded . Man y o f the m insiste d th e result s

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must b e th e produc t o f affirmativ e actio n i n wide r society—judge s and employers applying the helping hand to the less qualified minor ity, and so on." "And that' s wha t yo u mea n b y th e canonica l functio n o f merit , right?" "Yes, Professor . Th e whol e poin t o f th e cano n i s t o defen d itself , to insis t tha t countervailin g evidenc e justif y itsel f i n term s o f th e canonical idea . So , when th e ostensibl y less-meritoriou s minoritie s did well , i t mus t b e attributabl e t o a furthe r derogatio n o f merit , namely favoritis m i n late r life . Canonica l idea s resis t change , insis t that ne w evidenc e be interpreted i n light o f them, a near-impossibl e task for the proponent o f social change." "Merit goe s alon g wit h wha t i s canonical , place d a t th e center , with th e 'I. ' If thos e other s ar e succeeding , i t mus t b e because the y are getting unfair help . Canonical narratives of all kinds exist largely for tha t purpose : rationalizin g an d justifyin g th e wa y thing s are. 36 That and making them seem right and true," I concluded. Rodrigo nodded. Resolvin g t o play th e devil' s advocat e as long as possible, I added , "Bu t Rodrigo , wha t abou t whe n yo u an d I grad e bluebooks. Aren't w e applyin g meri t criteria ? Don' t w e appl y meri t criteria ever y da y i n life ? Sa y I g o t o th e grocer y stor e an d bu y a dozen Grad e A potatoes. Am I guilty o f buying into a canonical sin , of reinforcing th e status quo? I have to eat, and I want t o eat the best quality potatoes. What's so wrong with that?" "Nothing," Rodrig o replied, takin g a last bite of his flan an d scru tinizing th e botto m o f hi s dis h t o se e i f ther e wa s an y more . "Bu t grading people, especially for somethin g as long-term a s a job or seat in la w school , differ s radicall y fro m gradin g potatoes. When th e grocer grades potatoes, th e potat o i s static . It wil l b e bought an d eate n within a shor t time . Th e groce r properl y applie s a freeze-fram e ap proach, lookin g onl y a t th e potat o a s i t i s now—it s color , texture , shape. I t i s irrelevan t ho w fa r th e potat o ha s com e o r ho w fa r i t i s likely t o g o in th e future . People , however , ar e dynamic . Imagine a super-potato from anothe r planet. Would you like to buy and eat on e merely because right no w it resemble d al l those other ordinar y one s sitting in the grocer's bin?" I smiled a t Rodrigo' s example , an d h e continue d a s follows: "I' m sure you'v e ha d th e experience , Professor , o f attendin g a reunio n

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of th e blac k o r minorit y la w students ' associatio n te n year s afte r graduation. I attended one the other day. It was impressive." "Half th e alums were commissioners or judges," I guessed. "Exactly. Other s wer e partner s o f majo r firms. On e wa s a la w professor a t a school even more highly ranked than my own. " "It happen s ever y time . Ye t th e la w schoo l persist s i n treatin g affirmative actio n candidate s a s disadvantage d an d likel y t o fail . I t offers the m special help and tutoring sessions." "Which man y ar e gla d t o have, " Rodrig o said . " I wen t t o a fe w myself i n th e early months o f my LL.M. program. Even though I got decent grade s i n la w school , I was strugglin g t o ge t th e han g o f th e American legal system. The sessions I attended were quite helpful. " "But the n yo u transcende d them, " I said . "Yo u caugh t up . Yo u joined the other potatoes in the bin, and even went them one better." "Oh, I don't know about better," Rodrigo said, a little impatiently . "I ma y hav e a modes t talen t fo r writin g an d explorin g unorthodo x ideas. I'm no t s o sure I'm a better potato . Maybe I just wor k harde r and am willing to take more chances." "You're Rodrigo, " I emphasized . "An d I , fo r one , a m gla d you'r e around. And , I might add , very happy yo u entere d th e teachin g profession. Tha t way, at least we get to see each other on occasions like this rather than once every ten years at your class reunion dinner. " "Merit recede s fo r us , a s I onc e pu t i t i n a conversatio n wit h Ali, whil e i t proceed s fo r whites. 37 W e hav e ou r accomplishment s explained awa y whil e th e other s hav e thei r golde n statu s continu e long afte r thei r initia l advantage , gaine d a t Mom' s an d Dad' s knee , has worn off and their accomplishments become quite ordinary. Like the hypothetical professors you mentioned earlier, Professor. " "I wis h the y wer e hypothetical, " I sai d ruefully . "Bu t the y ar e based o n actua l cases . I n a fai r world , black s woul d hol d abou t 1 0 percent o f mos t o f th e desirabl e jobs . Bu t the y don't , an d so-calle d merit criteria , operatin g a s they do , are one of th e principal tool s by which those numbers are kept down. " "One thin g trouble s me , though, " Rodrig o interjected . "White s still allo w us a token few—i f no t 1 0 percent o f facult y jobs , then 2 or 3. Wouldn't a ruthless adversary, one who dominates all the councils, one who gets to draw up all the job descriptions, arrange matters so that we got none of the good things in life?"

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"They need tokens/' I said, "s o that thing s don' t appea r to o inequitable, s o that the y ca n tel l themselve s an d eac h othe r tha t thing s are improvin g fo r blacks . Theoretically, th e number s coul d becom e so suspiciou s a s t o cal l fo r a n explanation . Bu t court s don' t lik e statistical proo f o f discriminatio n an d lea n ove r backwards t o avoi d finding prejudic e i n number s tha t anyon e woul d thin k bespea k it. 38 There could always be another explanation, such as lack of interest. 39 But I think there is a deeper reason why courts don't intervene. " "I be t I kno w wha t yo u ar e goin g t o say, " Rodrig o interjected . "Courts don' t revie w th e criteri a themselves . The y polic e onl y th e periphery, th e application. They never conside r whether meri t crite ria themselves are skewed, onl y whether merit i s tested in a rational way, one related t o the job at hand. Conventional meri t tha t ma y be deeply biase d agains t minoritie s goe s unquestioned . It' s lik e an nouncing you'r e goin g t o han g someon e an d then , whe n h e o r sh e complains, pointing out tha t you're using a nice, sanitized rope. Any criteria coul d be jo b related. And , o f course , al l th e jo b description s are written by the majority, whic h happens to be white." "I think I could use an example." "I ra n acros s a grea t on e i n a magazin e I foun d o n th e plan e here. A n a d by U.S. English, whic h oppose s bilingua l educatio n fo r Hispanics an d others, was entitled, 'Wh y a Hispanic Heads an Organization Called U.S. English.'40 The ad explained the group's position by employin g th e rhetori c o f equa l opportunity . Eve n thoug h i t wishes to force everyone, including the foreign-born, t o stop speaking their native languages and struggle along as best the y can in English, the organizatio n describe d itsel f a s entirel y egalitarian. " Rodrig o fished ou t th e a d an d read : " 'On th e jo b an d i n th e schools , we'r e supporting project s tha t wil l ensur e tha t al l American s hav e th e chance to learn the language of equal opportunity.' " 4 1 "Equal opportunity? " I asked. "Tha t sound s lik e Orwellia n dou blespeak." "Not really, " Rodrig o replied . "I f yo u adop t th e organization' s view o f linguisti c merit—namely , speakin g English—thei r positio n is quit e consistent . Onc e yo u accep t that , everythin g els e follows , including the part about equal opportunity . "Of course , on e migh t hol d tha t i t i s bette r t o b e bilingua l tha n monolingual," I said vehemently, recalling my own struggles to learn Italian early in life and then more recently in preparation for a trip to

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Italy. "On e coul d hol d tha t speakin g mor e tha n on e languag e i s a n advantage, a sign of a cultured person. " "In that case , the organization and its agenda would appear vulgar and xenophobic. But i f your mission"—Rodrig o looke d agai n a t th e ad—"is preservatio n o f ou r commo n bon d throug h ou r commo n language," Rodrig o sai d a s h e too k anothe r loo k a t th e ad , "the n speaking other languages, by definition, threaten s that goal." 42 "Ill tak e cosmopolitanism, " I said. "Bu t i t is odd that th e organization urge s repressio n o f linguisti c minoritie s unde r th e banne r o f equal opportunity. " "It's all in the definition," Rodrig o replied. "I f your goal is forcin g everyone t o speak English , the n you r program will see m t o you lik e equal opportunity . I t treat s nativ e speaker s o f Englis h an d immi grants alike : everyone mus t spea k th e officia l language . And thi s i s true i n general . I f yo u exclud e fro m th e definitio n o f meri t wha t another grou p values, likes t o do, and doe s well, the y will naturall y turn ou t t o be meritless. And your action s in coercing them t o lear n what you deem important will seem well intentioned, fair, and just— a favor of sorts to the benighted. " "So, yo u believ e tha t meri t i s no t onl y biased , it' s als o undemo cratic becaus e i t inexorabl y lead s t o tyrann y o f th e majority . Bu t surely w e nee d som e criteria . Otherwis e you' d b e callin g fo r lazy , unqualified peopl e t o ge t desirabl e jobs—peopl e wh o don' t deserv e and haven't earned them. " "Not a t all," Rodrigo replied mildly. "Slacker s get jobs right now . The economy o f this countr y i s sinking, its productivity an d qualit y of lif e a t on e o f th e lowes t rate s ever. 43 Th e workforce s o f man y Asian countrie s ar e a s productive a s ours, an d thei r childre n atten d school for more hours and earn higher scores on standardized tests. 44 Our traditiona l meri t criteri a ar e ensurin g mediocrity . It' s quit e alarming." "And you think that our preoccupation with merit is the cause?" "It's one, " Rodrig o replied . "Unles s constantl y revised , modern ized, an d renegotiated, meri t cause s complacency , cause s meritless ness, lik e th e Britis h aristocracy , a millstone aroun d Grea t Britain' s neck. Th e mor e absorbe d i n 'merit ' a system becomes , th e wors e i t will fare in world competition. " "Perhaps w e ca n ge t t o solution s fo r ou r misguide d emphasi s o n merit later . Bu t I thin k yo u wer e hintin g earlie r tha t on e caus e o f

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this complacenc y o r sluggishnes s displaye d b y th e meritoriou s vic tors, th e phenomeno n w e no w se e i n th e West' s slippin g economi c position an d los t markets , i s tha t meri t ha s a n apologeti c effec t o f some kind. Could you explain this a little further? " "Sure. Meri t rule s reassur e life' s victor s tha t thei r wealt h an d favored position s wer e deserved . Lookin g aroun d them , uppe r class , suburban folk s migh t fee l guilt , migh t fee l uncomfortabl e ove r th e large number s o f poo r an d blac k peopl e leadin g blighte d live s a s a result o f slavery and racism, on the one hand, and economic disloca tions an d los s of jobs, on th e other . If the y ca n persuade themselve s that their own comfortable position s were fairly won, then they need not fee l responsible . The y wo n becaus e the y wer e entitle d t o win ; the other s los t becaus e the y di d not wor k hard , o r lacked th e brain s or other meritoriou s qualitie s necessary t o achiev e success. All neutral, marketplac e mechanism s hav e thi s function . An d it' s self-de feating becaus e i t reduce s competitio n an d enable s thos e wh o ar e currently comfortable—i f onl y becaus e o f Daddy' s inheritance—t o become lazy." "It produces a slack people," I added. "So it does . And so we have come full circl e once again," Rodrig o replied. "Oh, here comes our waiter." "Would you gentlemen lik e some coffee?" th e waiter asked . "A cappuccino for me—double, if you have it," Rodrigo said. "Decaf," I said. As the waiter retreated, I said, " I gather you thin k this is one reason for the West's current predicament. " "Yes," Rodrig o replied . "An d a s worl d condition s change , i t i s doubly ironi c tha t w e en d u p demonize d an d exclude d fro m meri t and life' s bounty . Fo r i t i s ou r skill s an d talent s tha t th e Unite d States need s mor e desperatel y tha n eve r i f i t i s to solv e its environ mental crisis , learn new patterns of social responsibility, an d acquire new approache s t o family organizatio n an d caring for th e aged. 45 All these tools and practices are within the repertoire of minority groups. We could teach whites lessons of incalculable value, ones that migh t help arrest th e country's decline . But they deny and reject, demoniz ing the very thing that could save them." "A sad irony that I'm afraid wil l become apparent only too late," I said somberly. "Oh, great! Here's our coffee!" Rodrig o exclaimed. After we had sipped our beverages briefly, Rodrigo continued. "Ar e

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you read y fo r anothe r paradox , Professor ? I was thinkin g abou t thi s the other day." "I have all the time in the world/' I said. "The y wanted m e to be on a second panel tomorrow , bu t I demurred. I' m to o ol d for doubl e duty, I said. So I'm limiting myself t o just the one speech. You've got me as long as I'm vertica l an d responding t o stimuli—whic h i n m y case," I estimated as I looked at my watch, "i s probably ten o'clock. " "It's a little after nine . Let me know if I'm wearing you out. I find these conferences stimulatin g and could probably go on all night. But you've been traveling today, plus you just gave a great twenty-minut e speech. Let me know if we're overdoing it." "I will," I said. "Pleas e g o on. I love paradoxes. What's you r ne w one?" "I call it th e paradox of disbursed merit. Michael Shapiro coined a similar ter m i n connectio n wit h biomedica l technologies. 46 Dis bursed meri t i s th e ide a tha t societ y i s capable , i n man y ways , of distributing qualitie s and skills that ar e constitutive o f the very idea of merit . Fo r example , la w schoo l itsel f probabl y boost s a student' s LSAT. That is , i f mos t o f ou r student s retoo k i t afte r tw o o r thre e years o f trainin g i n cas e analysis , the y woul d probabl y scor e highe r than they did when the y took it th e first time . The old adage, learning to think like a lawyer, probably has at least a grain of truth i n it . The sam e i s tru e o f man y othe r highl y selectiv e callings . Th e bes t athletes mak e trainin g squad s an d Olympi c teams . The y thu s ge t more practic e time , acces s t o coaches , trainer s an d physicians , die t help, an d so on, and so rapidly increase th e gap between themselve s and thei r less-favore d competitors . Movi e stars , alread y beautiful , earn th e mone y t o bu y cosmeti c surger y an d becom e eve n mor e attractive. The haves increase thei r lead over the have-nots, an d no t just becaus e skill , intelligence , an d beaut y ar e a t a premium i n ou r society. I t i s als o becaus e th e resource s tha t the y enabl e yo u t o command permit you to buy further increment s of skill, intelligence, and beauty . Thi s enable s th e have s t o becom e mor e meritorious , richer, and better able to buy merit-enhancers, in an endless chain. " "I agree that's how things work. But I'm not sure I see the paradox. Isn't tha t th e inevitabl e resul t o f an y competitive , marketplace-ori ented society? The rich get richer. It's always been that way. " "The paradox lies in the moral irrationality o f rigorously applyin g merit criteria to distribute regimens, programs, or medicines that can

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give the beneficiary a boost i n an attribute tha t form s a part of , o r is a pre-existing elemen t of , thos e very sam e meri t criteria. 47 I t woul d be lik e a pain t stor e tha t sol d yello w pain t onl y t o owner s whos e houses wer e alread y yellow . I f law schoo l ca n boost anyone' s LSA T and ca n mak e practicall y an y intelligen t perso n int o a competen t lawyer, the n i t become s irrationa l t o insis t o n a hig h LSA T a s a condition of entrance." "To resolv e tha t paradox , then , w e woul d nee d t o tur n t o othe r distributive principles , suc h a s equity , utility , reparations , an d th e like t o make th e entranc e determination . Onc e societ y develop s th e means radicall y t o increas e a person's meri t i n a particular regard — whether i t b e intelligence , strength , beauty , analytica l ability , o r health—it become s pointles s t o continu e t o distribut e th e benefi t based o n th e preexistin g possessio n o f tha t ver y sam e attribute . I gather that' s wha t yo u mea n b y you r paradox . An d I thin k I agre e with it," I said. "You may be onto something. " "It's no t onl y a paradox, Professor . It' s a potent argumen t agains t overreliance o n merit , particularl y i n educationa l settings . It seem s to me to set an important limi t upon the meritocratic ideal, one that should give even conservatives pause." "Did you mention it to Kowalsky?" "I did. He resisted less than I expected. On his own he pointed ou t that distributin g increment s o f meri t base d o n meri t criteri a coul d create dynasties . Merit i s a resource attracto r i n ou r society. 48 I f w e limit distributio n o f merit-conferrin g attribute s an d skill s t o th e brilliant an d talented , the n w e guarante e tha t the y wil l corne r th e market, s o to speak. Kowalsky loves market theory. " "To som e exten t thi s i s happenin g now, " I pointe d out . "Th e wealthy se t thei r childre n u p i n business , provid e the m wit h trus t funds. The well-educated see to it that their kids get the best possible educations, sometime s wit h a n assis t fro m legac y program s insti tuted by the educational institutions. In America, a small percentage controls an overwhelming portion of the net wealth; this may be part of the reason." "Professor, d o you recall our earlier discussion about how merit i s context-dependent—how i t all depends on what society values?" "Yes. You gave the example of the hoop in a basketball game. You also mentioned women's roles in group situations." "Well, it jus t occurre d t o me tha t man y o f the qualms you, I, and

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other progressiv e peopl e hav e with th e ide a o f merit , asid e fro m it s disreputable history, relate to its interdependency. " "Do yo u mea n th e contextua l qualit y w e were talkin g abou t be fore, or some other kind?" "I mean tha t whic h arise s by virtue o f th e socia l constructio n o f the notion of a person. Most people can be made to agree that persons do not exist in a vacuum,- rather, we are coterminous with our social surroundings. Someon e wh o live d hi s o r he r entir e lif e o n a deser t island would scarcely grow up to be anything we would recognize as a person . W e al l deriv e ou r identity , i n larg e part , fro m th e socia l practices, roles , an d expectation s o f th e cultur e int o whic h w e ar e born. These include the premiums tha t we place on certain things as constitutive elements of merit." "And I assum e yo u mea n th e sam e i s tru e o f demerit , merit' s opposite?" "I do. That's part o f the reason why I think society' s toleratio n of the ubiquitous imagery in popular media and the press of minoritie s as criminal , stupid , vicious , an d sexuall y licentiou s i s wort h ad dressing." "I assum e yo u woul d includ e hat e speech . Tha t run s you r argu ment directl y counte r t o th e Firs t Amendment . Ou r friend s i n th e ACLU would not like that. " "All I a m sayin g i s tha t th e socia l constructio n o f demerit , lik e that o f merit , raise s seriou s problem s an d need s t o b e addressed . I have a feeling ther e ar e the sam e irrationalitie s an d inequitie s buil t in on that side, as well. But that's a subject for another time. " "I agree, " I said , lookin g a t m y watch . "I' m afrai d I nee d t o b e getting bac k t o th e hote l soon . Muc h a s I love thi s plac e an d hav e enjoyed ou r conversation , Rodrigo , a n ol d ma n lik e m e need s hi s sleep. And I do have that earl y plane to catch tomorrow morning." Both o f u s wer e silen t fo r a moment . Th e waite r materialized , coffee pot in hand. "Would you gentlemen like refills?" he asked. We each looke d a t th e other . " I believe ther e was on e final poin t abou t history tha t w e wer e goin g t o explore, " Rodrig o said , noncommit tally. "I'm going strong, but you've had a long day." I hesitated. Th e coffee looke d good. Just then Rodrig o looked past my shoulder and with a shock of recognition said , "Kowalsky ! What are you doing here?" I turned t o se e a strikingly pal e young man , abou t Rodrigo' s age ,

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with a neat suit , short hair, an d an alert, sparkling expression. I halfstood, Rodrig o introduced us , and I invited Kowalsk y t o sit down . It turned ou t tha t h e had just arrive d t o tak e part i n a panel o n tenur e the nex t morning . "W e wer e jus t no w discussin g merit/ 7 Rodrig o said. "Would you care to join us?" 'Td b e pleased to, " Kowalsky said . "Althoug h I' m jus t her e for a snack. Looks like the two of you are nearly finished. " "Please stay," I said. "Rodrigo was going to give me the last chapter o f a conversatio n h e say s wa s inspire d b y you. H e wa s goin g t o review the history of merit and meritocracy in the United State s and draw some lessons." I turned to Rodrigo. "I hope I'm not putting you on the spot. " "Oh, no, " Rodrig o replied . "La z an d I tell eac h othe r everything . Nothing scandalize s him , eve n m y mos t wild-eye d radical ideas. He loves debat e and , a s you wil l see , i s capabl e o f holdin g hi s ow n o n anything. Right, Laz?" The pale young man smiled and said, "We'll see. I get as much ou t of Rodrigo' s challenge s a s he gets out o f mine. I'd lov e t o hear wha t you hav e t o say. " H e gesture d towar d th e waiter , ordere d a spic y dish—I complimented him on his choice—and Rodrigo began.

In Which Rodrigo and His Friend Debate Merit's History and What It Means for Today "I'm really happy you showed up, Laz," Rodrigo said. "I didn't kno w you were coming. The Professor an d I were talking about some of the same things you and I discussed the other day." "Still resisting merit, eh? " Kowalsky said. "Ironic—the most brilliant membe r o f ou r faculty , an d you'r e stil l a t it , deconstructin g your own talent an d distinction. I think you liberals are just uncom fortable wit h you r ow n smarts , you r ow n status . Such levelers . Too bad." Kowalsk y smile d warml y t o le t u s kno w h e mean t nothin g personal. "Touche," Rodrig o replie d good-naturedly . "Bu t eve n i f yo u ar e right abou t liberal s o n a personal level , ther e stil l remai n a host o f irrationalities and problems with merit, even more than the ones you and I were talking about before. The Professor an d I developed the m further jus t now . I f yo u like , I ca n brin g yo u u p t o dat e whe n w e

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get home . Actually , wha t flight ar e yo u on ? Ar e yo u flying hom e tomorrow?" It turned out that the two young scholars were indeed on the same flight. They quickly made plans to phone the airline and change their seat assignment s t o si t together . "I'v e go t th e 800-numbe r some where," Rodrigo said. "Maybe I'll d o it as soon as we get back to th e hotel." H e caugh t th e waiter' s eye , indicated w e woul d indee d lik e coffee, an d resumed his colloquy. 'Tm sur e both o f you kno w ho w th e earl y anthropologists, u p t o the period of Franz Boas, were fascinated by the idea of proving racial differences, particularl y one s having to do with intelligenc e an d cranial capacity." 49 "Most o f thes e hav e bee n discredited, " Kowalsk y sai d quietly . "No one of my acquaintance or political persuasion would give them any credit today. That was a disgraceful chapte r in our history. I hope you are not going to tar the entire idea of merit with the brush of th e early extreme pseudoscientific meritocrats. " "Though fe w ma y subscrib e t o th e crud e version s o f thos e earl y race-IQ theories," Rodrigo said, "the history of the idea is still relevant today. I n man y respect s today' s mos t striden t meritocrat s ar e th e straight-line descendant s o f th e lat e nineteenth an d earl y twentiet h century ones . And in som e respects, thei r agend a and arguments ar e exactly the same. Consider the current SAT, administered by the Educational Testing Service for the College Board. Until recently, the test had item s abou t oarsme n an d regattas. It containe d question s abou t polo and mallets. 50 It is eminently coachable . The directo r o f one of the prominent test-coachin g companies, which charges between fiv e hundred and one thousand dollars for its services, recently admitted— boasted, really—tha t hi s organizatio n wa s able to boost th e scor e of the average test-taker by 185 points.51 Thirty percent improved by 250 or more. 52 Becaus e o f th e hig h pric e charged , th e childre n o f th e wealthy are more likely to be able to take the course." 53 "I mus t admi t I too k suc h a cours e myself, " Kowalsk y said . "Twice, in fact. Whether it helped my score or not, I don't know. But my parents were not a t al l rich, a s you know. I saved up th e mone y because I wanted t o d o well . I f poo r kid s ar e disadvantage d b y th e test, i s not th e solutio n t o eliminate thos e test item s tha t ar e unfai r and t o mak e sur e tha t th e cra m course s offe r scholarship s fo r poo r kids who can't afford them? "

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"That woul d b e a start/ ' Rodrig o sai d a littl e dubiously . "Bu t I think th e whole enterprise ough t t o come under scrutiny . The test' s principal originator , Car l Campbel l Brigham , wa s a n out-and-ou t white supremacist who published a book in 192 3 entitled A Study of American Intelligence. I n the book, Brigham cautione d tha t inferio r immigrants an d minoritie s wer e swampin g th e countr y a t th e ex pense o f thos e wit h superio r Europea n genes . H e warne d agains t interbreeding an d urge d tha t w e clos e ou r borders . Two year s later , he became director o f the Colleg e Board's testing program. He based the first tes t o n Madison Grant' s The Passing of the Great Race. It s purpose was to confirm th e superiority o f white test-taker s pure and simple. It is no different today : merit is up-to-date bigotry. 54 "I had no t hear d abou t th e SAT' s history . That' s appalling, " Kowalsky said . "But I'm no t sur e what i t has to do with today . No on e advocates thos e distastefu l notion s an y more . An d isn' t meri t th e best protecto r black s hav e agains t intolerance ? Ho w els e ca n yo u dispel negativ e stereotype s excep t b y succeeding , bein g successful , demonstrating your merit?" "That's jus t wha t w e are prevented fro m doing, " Rodrigo replied . "Remember thos e tes t item s abou t regattas . The y actuall y ha d a n item lik e tha t o n th e versio n o f th e LSA T I took. I knew wha t th e word mean t becaus e it' s simila r t o on e i n Italian . However , i f I' d been a smar t bu t poo r ghett o kid , I migh t hav e faile d tha t item . Fairness, including fairness i n testing, is always a contested concept , always relative to someone's interests, perspectives, and purposes. It does no t stan d outsid e experienc e i n som e externa l realm . It' s a matter o f what w e dee m important . An d th e 'we ' i s generally thos e who ar e in a position t o assure that thei r own merits, values, stand ing, and excellence remain untouched." 55 "I still think you are putting too much emphasis on early history," Kowalsky said . "Th e tes t ma y hav e bee n biase d bac k then , an d maybe a regatta or two creeps in even now. But ETS has professiona l test validators, expert s who comb the items for bias. And surely you cannot say there are no differences i n legal aptitude or ability. You're a teacher ! Rodrigo , yo u se e thos e difference s ever y day , ever y tim e you teac h a class o r grade a bluebook. What' s wron g wit h tryin g t o see that lega l education i s not wasted on those who simply can' t get it, on whom i t won't tak e hold? You do no favor by admitting some-

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one who has so little talent for analysis that every law school class is a torment, ever y exam a humiliation. An d if they don't pass the bar, they've wasted three years." "We wer e talking—th e Professo r an d I—abou t ba r results , jobs , and s o on , befor e yo u cam e in . I can brin g you u p t o dat e o n thos e things on the plane back, if you want. But I'd like to return to history, if th e tw o o f yo u don' t mind . An d no , Laz , I don' t thin k tha t th e history o f an idea is irrelevant t o its curren t understanding. Som e of the modern conservativ e an d neoconservative writer s soun d theme s remarkably simila r t o th e now-discredite d one s fro m tha t rougher , more overtly racist era." Rodrigo pointed out the book his friend ha d been carryin g tha t no w la y o n th e boot h sea t nex t t o him . "Jare d Taylor is an example, 56 but some of the more moderate conservative s and neoliberals are saying much the same thing." "Patrick Moyniha n say s tha t black s i n th e urba n underclas s ar e evolving int o a ne w an d differen t species , cu t of f fro m th e res t o f civilized societ y an d developin g more s an d a cultur e o f thei r own , passed dow n fro m mothe r t o son . Speciation , h e call s it, " I re marked.57 "And he's a Democrat!" Rodrig o exclaimed. "The n there' s Arthu r Schlesinger, from th e same party. His recent book, The Disuniting of America,58 tell s how the recent ethnic upsurge is tearing the countr y apart. H e argue s tha t multiculturalis m an d identit y politic s ar e weakening Anglocentri c culture , ou r commo n bond . H e deplore s that w e a s a nation ar e getting awa y from th e ol d ideal o f assimila tion that encouraged immigrants and minorities to shed their ethnicities in favor o f WASP culture and tradition. He says this is not onl y bad for th e country , bu t als o for minorities . For the American tradi tion i s 'th e uniqu e sauc e o f individua l liberty , politica l democracy , the rul e o f law , huma n rights , an d cultura l freedom. ' Collectivis t cultures, by contrast—and b y those he means us , I'm afraid—'hav e stamped with utmost brutalit y on human rights.' He considers the m tribalistic, despotic , superstitious , an d fanatical . I t i s absur d tha t society is asked t o give those cultures equa l respect. White guilt, h e says, can be pushed too far." 59 "I've read that book, " Kowalsk y said . "An d it i s possible tha t th e author himsel f goe s a littl e to o far . Othe r cultures , includin g m y own, have given America much of what it has to be proud of, rangin g

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from som e o f it s bes t musi c t o it s to p scientists , an d even, " h e noted a s h e gesture d towar d hi s plat e ful l o f steamin g dolma-typ e delicacies, "it s finest food . Yet , I think h e has a point whe n h e say s that th e America n synthesi s ha s a n inevitabl e Anglo-Saxo n color ation.60 I f so , h e i s no t amis s i n portrayin g racia l separatis m an d separate dorms for blacks as forms of balkanization." "I'm no t s o sur e wh y i t ha s t o b e tha t way, " Rodrig o replie d mildly. "The Passing of the Great Race 61 echoe d som e o f th e sam e themes, warnin g o f chao s an d disorder . Immigratio n continued , ye t the evil s th e autho r warne d o f di d no t com e t o pass . Som e o f th e 'English-Only' peopl e soun d som e o f th e sam e alarms . Their theor y is tha t Englis h ough t t o reign supreme , tha t it s sacre d texts , includ ing th e Kin g Jame s Bibl e an d Shakespeare , ar e th e onl y guarantor s against barbarism, which of course is not true. 62 The problem is tha t there is a match, virtually a one-to-one correspondence, between th e new writers and the ol d ones who wrote tracts abou t white suprem acy. Lawrence Auster's 199 0 book63 warns that we are seeing the end of Wester n civilizatio n i n recen t immigratio n refor m acts, 64 whic h modestly rela x th e previou s restriction s agains t immigratio n fro m the Thir d World . Richar d Brookhiser , senio r edito r a t th e National Review, ha s written i n his book, The Way of the Wasp, 65 tha t Angl o traits such as conscience, antisensitivity, industry , and success mus t be preserve d ove r th e opposit e one s tha t minoritie s an d foreigner s bring, namely, self, creativity, gratification, an d group-mindedness. If we allow th e former trait s t o be submerged by the latter, Americ a i s sure t o los e th e way. 66 Thes e idea s resembl e nothin g s o muc h a s those of Henry Pratt Fairchild in The Melting Pot Mistake,67 a 1920sera trac t agains t immigration . So , you se e tha t today' s meritocrat s and tes t advocate s hav e muc h t o liv e down . Bot h thei r curren t an d their ol d champion s bas e thei r arguments , implicitl y an d explicitly , on racia l superiorit y an d xenophobia . Car l Campbel l Brigham , i n A Study of American Intelligence, 68 studie d racia l difference s i n men tal traits . Base d o n a survey o f arm y tes t results , h e conclude d tha t Negroes were 'very inferior' an d warned against integrated educatio n because Negroes were incapable of taking advantage of it. He became director o f th e SAT , whic h faile d t o repudiat e hi s teachings , and, indeed, the ETS library bears his name!" 69 "So, Rodrigo, " I said . "Yo u ar e sayin g tha t a n appea l t o a unit y based on Anglo-Saxon values is inherently racist." 70

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"Yes, an d s o i s panderin g t o fear s o f balkanization . A s a recen t author put it, ideas are only intelligible within the particular circum stances tha t gav e ris e t o the m an d i n whic h the y ar e circulated . Thus, an appeal in today's climate to national unity, assimilation, o r against balkanization is deeply racist." "So is one to merit," I added, "for the same reasons." "Rodrigo, you two have me half convinced, " Kowalsk y conceded . "But onl y half. The histor y yo u recounte d i s certainl y distasteful — although n o mor e s o than othe r chapter s w e coul d name , includin g express quota s agains t Jew s a t to p universities , an d 'N o Iris h Nee d Apply' rule s tha t wer e in effec t i n certai n Northeaster n citie s fo r a t least as long as the repulsive testing and IQ theories you mentioned . And I'll remind you that on e still hears Polish jokes even today. But I still think that merit, properly applied, can serve as the best guarantor agains t racis m an d bias. Look a t sports . As you yourself pointe d out, black s dominate , simpl y becaus e they'r e faste r an d hav e mor e drive.71 Other spheres could yield in similar fashion. Loo k at you, for example. You and Barney are two of our most recent hires and among bur bes t b y an y measure . Global standard s o f merit , lik e th e SAT , may b e unfair , overbroad , an d pron e t o th e kind s o f abuse s yo u detailed. Bu t I don't se e how yo u ca n den y local, o r contextualize d merit—speed i n a hundred-yar d dash , teachin g abilit y i n a la w school, spelling ability in an editor. You liberals believe in contextu alizing everything . Isn' t tha t th e solutio n t o you r problem s wit h merit?" Rodrigo replied : "Tha t ma y hel p somewhat . Bu t meri t stil l ex cludes, and in an especially pernicious way. The Professor an d I were discussing some of these things before." At the mention o f my name, I shook my head, recognizing with a start tha t th e relaxe d reveri e int o whic h I ha d lapse d wa s driftin g perilously close to dozing. "The Professo r i s lookin g tired, " Rodrig o said . "He' s ha d a lon g day. Maybe we'd better call it quits for now." "I'm going strong," I protested. " I just need another cup of coffee. " "We'll wal k yo u back, " La z said, takin g m y elbo w a s I stood up . "I've finishe d m y food , an d m y colleagu e an d I bot h hav e earl y sessions tomorrow morning. "

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Exit Rodrigo on a Note of Race-andClass Reconciliation Our meetin g broke up. We walked i n near silenc e back t o th e hotel . Rodrigo spok e onl y once , t o remin d hi s frien d t o as k hi m abou t something later. Within te n minute s I was in my hotel bed, sleepin g the slee p o f th e dead . I sa w La z an d Rodrig o onl y briefly , a t a dis tance, th e following mornin g in th e hotel lobby . They were engage d in a n animated discussion . Bu t I had a feeling I would hear from th e two youn g scholars , on e conservative , on e radical—ye t seemingl y best friends . M y hunch turne d ou t t o b e true . Onl y tw o day s after I got back , I received a lengthy lette r fro m Rodrig o i n m y la w schoo l mailbox. Writte n o n lon g compute r pape r (hi s trademark) , i t con tained a torrent of words, concluding with th e following : And so , Professor, afte r ou r long tal k o n the plane bac k home , we each realize d tha t th e other wa s both righ t an d wrong. After hearin g more o f Laz's story , I've concluded tha t Europea n ethnic s ca n experience headwinds just as great as those our people suffer, th e element of skin colo r excepted . (Di d I tell you that Laz , despite his obvious brilliance, wen t t o a communit y college? ) Muc h cruelt y an d unfairnes s are perpetrate d unde r th e banner o f class , whic h i s ofte n a s great a disadvantaging factor a s race, and nearly alway s a cross-cutting one. 72 Moreover, affirmativ e actio n merel y shift s th e cost o f racial remedie s onto those least able to protest—blue-collar white s like Alan Bakke or Laz's siblings—neatl y exemptin g th e high-achieving so n or daughter of a blueblood family . For his part, Kowalsky finally cam e around to my and your position that w e cannot accep t meri t standard s a s they are , pressing onl y for the occasional, limited affirmativ e actio n exception—rather , w e must fundamentally re-evaluat e merit standard s and the way they are used. He als o agree s wit h ou r conclusion tha t affirmativ e actio n generate s its ow n pool proble m throug h a sor t o f self-fulfillin g prophecy . H e added tha t th e West's slipping economi c positio n i s especiall y trou bling, a s it is likely t o close off opportunities no t just fo r blacks, but also for upwardly-mobile white ethnics. He said his people have a kind of 'second sight' or double consciousness, like ours. They are outsiders to som e extent . Bu t they als o hav e see n th e way entire culture s can sink, a s in Eastern Europe , wit h thei r superstructure , leadership , and cultures essentially intact . For my part, I agreed—somewhat reluctantl y t o be sure, but Laz's

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logic is unassailable—that minoritie s ough t never , excep t i n th e nar rowest circumstances , accept affirmativ e action . Doin g s o split s th e poor communit y alon g colo r line s an d reinscribe s th e curren t meri t standards just that much deeper. It also reinforces the belief that people of color are unworthy an d need affirmative action , when th e reality i s that societ y needs the m an d thei r genius at leas t a s much a s we nee d society. So, La z an d I declare d a pact , a sor t o f truce , whic h w e pla n t o publicize to our groups and to everyone who will listen. We'll start by holding a conference . Th e genera l ide a woul d b e tha t minoritie s wil l foreswear affirmativ e actio n unless it also includes poor whites. White ethnics an d people of color—those wh o join the new coalition, a t an y rate—would agre e to work together to subvert and replace the array of standards, socia l practices, an d old-bo y networks tha t no w hol d bac k the progress of both. We believe the critique of merit, far from bein g a sour-grapes venture , lead s inexorabl y t o a bold , hopefu l coalitio n i n which tw o numericall y larg e groups—minoritie s an d ethni c (tha t i s non-WASP) whites—wor k togethe r t o lif t th e yoke s o f racis m an d classism tha t oppres s each , an d tha t en d up , a s we'v e seen , linked . Until no w thi s linkag e betwee n racis m an d classis m ha d no t bee n demonstrated. Now that it has, will you and your friends joi n us in the last, th e final , an d th e mos t important , subversio n o f all ? Her e ar e a range of dates we are thinking of for th e conference. We're getting th e money for your speaker's fee. Will you come? Rodrigo's lette r wa s accompanie d b y a neatly type d shee t o f com puter paper , entitle d "Tentativ e Conferenc e Program, " whic h in cluded th e following events : First Day : Reconstructin g Affirmativ e Action . Convenor — Laz. Morning. Keynot e address . O n th e nee d fo r a new race/clas s coali tion. Ask th e professor o r someone o f his generation . The Critiqu e o f Affirmativ e Action . Pane l an d respondents . Dis cuss th e histor y an d curren t statu s o f affirmativ e action . Suprem e Court jurisprudence . Critica l perspectives . Wha t i s wron g wit h th e doctrine, an d wher e d o we g o from here ? Break-out sessions : Pai r leftie s an d righties . Assig n a reporte r t o report bac k t o th e group . Lunch. Address by Laz .

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Afternoon. Workin g groups . Tentativ e assignments : Ho w t o per suade minorities to foreswear affirmativ e actio n based solely on race. Devising ne w socia l programs an d objective s tha t wil l includ e poo r ethnic whites and immigrants. Legislative reform. New judicial standards of review. Late PM . Plenar y session : Round-table—La z plu s th e reporters : Contours of the New Pluralism—Race and Class in the Nineties and Beyond. Second Day: Reconstructing Merit . Convenor—Rodrigo . Morning. Keynot e address . O n th e nee d fo r ne w approache s t o merit. Ask th e professor i f he wants thi s one? If not, ge t someon e of his generation. Duncan Kennedy or Derrick Bell? The Critiqu e o f Merit . Panel , respondents . Discus s histor y an d role o f merit , includin g I Q test ; Equa l Protectio n challenges , cas e law. Critica l perspectives : wha t i s wron g wit h conventionall y de fined merit—paradoxes , inequities , th e nee d fo r reform . Ho w meri t standards burden both minorities and ethnic whites. Break-out sessions : Pai r peopl e o f opposit e persuasions , back grounds, races. Each group designates a reporter who reports back t o the group. Lunch. Address by Rodrigo. Afternoon. Workin g groups : Th e social constructio n an d recon struction o f merit . Mechanism s b y whic h conventiona l meri t stan dards oppress both blacks and poor whites. Programmatic considerations—a writing competition; sponsor test cases ? Late PM . Plenar y session : Rodrig o plu s th e reporters . Wh o reall y has merit ? Wh y curren t standard s flunk , an d wher e w e shoul d g o from here ? Press conference o n the new black/white coalition and program.

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American Apocalypse

In Which I Pay a Surprise Visit to Rodrigo's Law School Hee-hee, I caught myself mutterin g under my breath with a childish excitement unbefittin g someon e my age, as I walked up the last fe w stairs t o Rodrigo' s fourt h floo r office . I n th e past , m y youn g enfant terrible ha d mad e a practic e o f droppin g i n o n m e unexpectedly , materializing a s thoug h ou t o f nowhere . Now , courtes y o f a boar d meeting o f a publi c interes t organizatio n I ha d agree d recentl y t o serve, I foun d mysel f i n Rodrigo' s city . Wit h a littl e tim e o n m y hands, I had caught a cab to his law school to see how he was doing. And here I was, knocking o n his doo r and feeling mor e tha n a littl e conspiratorial. "Professor! Wha t a surprise! Come o n in. What bring s you t o th e Midwest?" "Quite a turnabout, isn' t it? " I beamed, steppin g inside and shak ing his hand warmly. "I'm here for a board meeting. I hope you're not too busy for a few minutes with your old professor. " "Never," h e replied , motionin g m e t o hav e a sea t o n hi s offic e couch. "Let me just get rid of this call." Rodrigo picked up the phone, which was lying receiver up on his desk. "And make that five rooms with no feather pillows, please." "Oh," I said. "You must be working on that conference . I saw th e signs on the doors." 99

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"Yes. It' s th e regiona l 'Peopl e o f Color ' meeting . I t starte d thi s afternoon. I' m th e loca l arrangement s person . Tw o professor s fro m Rutgers ar e in charg e of th e program. The last tw o weeks o f my lif e have been one round of pillows, special meals, and late registrations. People ar e stil l checkin g in , eve n thoug h w e jus t ha d th e openin g session." "Are you doing all this by yourself?" "Giannina i s helpin g out . S o i s Laz , m y conservativ e frien d t o whom I introduced yo u a whil e back. 1 An d th e staf f i n th e dean' s office ha s been great." "I wen t t o th e Critica l Rac e Theor y worksho p las t summer, " I said. "I' m somethin g o f a senio r statesman . Thi s isn' t th e sam e group, is it?" "No, althoug h a few of the same folks ar e attending. It's not quit e so high-powered—mostl y youn g professor s wh o rea d eac h other' s papers and offer support. " There was a rattle outside th e door. Two uniformed youn g people stood expectantl y behin d a gleaming cart . "Righ t dow n there , in th e faculty lounge , please," Rodrig o indicated . Then , t o me : "Thos e ar e the caterers. We're having a reception in exactly . . . (he looked at his watch) forty-five minutes . Can you join us?" "I wis h I could. Unfortunately , I have a dinne r tonigh t wit h th e board. Bu t ou r meetin g tomorro w finishe s a t noon . Maybe I'll com e by if you allow drop-ins." "For you , o f course, " Rodrig o replie d graciously . "Here' s a pro gram. The afternoon sessio n starts at one. When do you fly back?" "Seven-thirty," I said, scannin g th e program. "Wha t di d I miss a t the opening session?" "Not much . Th e dea n gav e a speech . The n th e Rutger s peopl e spoke, summarizin g development s o n th e nationa l scen e sinc e las t year's meeting." "Emphasizing th e conservativ e surg e an d attac k o n affirmativ e action, I imagine?" I asked. "Yes, the whole panoply of right-wing advances. It was sobering, to say the least. They described the way conservatives have been rolling back affirmative actio n in the workplace 2 and diversity programs o n college campuses. 3 The y outline d th e attac k o n minorit y scholar ships,4 ethni c studie s programs, 5 an d professor s o f color. 6 The y re viewed ho w th e religiou s Righ t ha s bee n opposin g gay-right s ordi -

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nances 7 an d schoo l curricul a tha t discus s sexua l orientation, 8 demanding religious education and prayer in schools, 9 and urging of ficial recognition fo r religious holidays. 10 They detaile d how conser vatives have been reversing women's reproductive liberties,11 electing local official s wit h a back-to-basics approac h t o publi c education, 12 building prisons, and supporting tough-on-crime measures. 13 Conservatives also have held the line on military spending, even though th e world i s a t peace. 14 They'v e bee n enactin g repressiv e immigratio n measures, English-only laws, and referenda aime d at depriving immigrants of public services. 15 They've been reforming the tort system t o cut back on recoveries by consumers injured by defective products and doctors wh o commi t malpractice, 16 reducin g social welfar e fo r th e poor and desperate,17 and curtailing support for the arts."18 "Sounds chilling , especiall y whe n yo u hea r i t al l at once, " I said. "How did your friend Kowalsk y take all this?" "It's funny. I sat next to him. He was actually smiling and nodding approval ove r som e o f th e remarks , eve n thoug h everyon e els e wa s frowning. Afterward , h e go t int o a furiou s argumen t wit h Jod y Elmour. In fact, they'r e probably in th e faculty loung e right now , having it out. " "That shoul d prove interesting. Elmour is one of the most brilliant young scholar s o f colo r i n th e country . I loved hi s Stanfor d article . And Kowalsky is no slouch, either. " "He'll be back tomorrow, " Rodrig o said. "W e can ask him ho w i t came out. They were arguing about prayer in schools, but before the y left, La z asked m e t o remind hi m t o tel l m e his theor y abou t a race war." "I hope I get to sit in. He's smart an d always gives a good account of himself. You're lucky to have him as a colleague." "I agree," Rodrigo added. "Fo r my part, though, I want t o pin hi m down first on something that he strongly believes in, namely neutra l principles. He thinks it's the solution for everything, and I can't seem to get him t o realize how colorblind jurisprudenc e simpl y maintain s racism an d the statu s quo. He keeps saying that a system tha t treat s blacks and whites equally in every respect cannot possibly be racist." "He does , however , believ e i n affirmativ e action , a s I recall, " I added.19 "He does, so long as it's aimed at reversing the legacy of discrimination an d denie d opportunitie s fo r blacks , somethin g h e feel s ver y

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strongly about . H e als o think s affirmativ e actio n shoul d appl y t o poor whites, and he doesn't understand why it should apply to veterans and the handicapped—especially i f they're rich and cannot prove intentional discrimination . Bu t asid e fro m that , h e think s th e la w does all it can and should when it achieves formal equality—tha t is , treats everyon e accordin g t o a single , unifor m standard . H e keep s saying tha t th e la w protect s individuals , no t groups , an d tha t it' s unfair t o mak e working-clas s o r ethni c white s pa y fo r th e sin s o f Southern aristocrats and plantation owners, sins they had no hand in perpetrating. H e als o keep s comin g bac k t o th e wa y i n whic h affir mative action benefits peopl e of color like me, who have suffered n o great hardship s i n life , an d leave s ou t peopl e lik e hi s family , wh o immigrated from a n Eastern European country and had to struggle to survive." "How are you going to answer him?" "I was just formulating m y response when you walked in. I have a few ideas . But before I start, ca n I offer yo u a cup of coffee ? I have a new espresso maker. It's a little like yours, but smaller. Giannina has been after m e to cut down. She says it makes me too hyper." "Funniest thing, " I said , smiling , t o reassur e m y youn g proteg e that I appreciated hi s high-energ y manner . "I' d lov e a cup . Decaf i f you have it." "I do. Laz is in here a lot, and he's a decaf fan , althoug h I hate th e stuff myself. " As my young friend busie d himself measurin g out th e beans and water and setting the dials, he began:

In Which Rodrigo Critiques Neutralism, Conservatives' Stock in Trade "I'm thinkin g o f tellin g La z tha t there' s nothin g reall y wron g wit h neutral principles , s o lon g a s w e allo w fo r redres s fo r pas t oppres sion.20 But I'll go on to tell him tha t many conservatives advance the principle hypocritically . The y don' t reall y believ e i n treatin g black s and gay s an d wome n equally , a t all . I'd lov e t o hea r you r reaction , since I'm sur e that i f there's an y weakness i n my argument La z will find it." "I'll do my best. Go ahead."

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"I'm thinkin g o f demonstratin g tha t th e tw o principal argument s neutralist conservative s advanc e agains t affirmativ e action , namel y that i t punishe s innocen t white s an d benefit s undeservin g blacks , are bogus. 21 I f I' m right , there' s littl e abou t thes e program s tha t conservatives shoul d oppose . And I believe the sam e holds for othe r areas in which conservative s ar e mounting the neutralist attack . My critique consists of two parts. I could run it past you, if you have th e time." "I do , I do . Pleas e start . Ho w lon g d o w e hav e unti l you r recep tion?" "Oops. Onl y fort y minutes, " Rodrig o said , lookin g a t hi s watch . "Your coffee's ready . Cream and sugar?" "Not M y Fault"—The Conservatives ' Firs t Argument As I stirre d m y beverage , Rodrig o began : "A s alway s i n social relations betwee n races , what look s ordinar y turn s ou t t o be exceptional, and what appears exceptional ordinary. " "I think I agree," I said. "But I could use an example." "With affirmativ e action, " Rodrig o replied , "whit e folk s ar e con stantly tellin g us tha t i t i s unfair t o saddle them wit h responsibilit y for what happened long ago. They themselves never owned slaves or operated a whites-only lunc h counter . S o why shoul d the y hav e t o make sacrifice s s o black s an d Mexican s ca n ge t job s o r place s i n university o r la w schoo l classes ? The y admi t tha t th e thing s tha t were don e t o black s wer e terrible . Bu t the y insis t tha t thos e wh o committed thes e atrocitie s ar e dead , an d s o th e mora l deb t tha t America onc e owe d th e slave s an d childre n o f slave s i s simpl y no t repayable." "I hat e t o sa y this , Rodrigo , bu t tha t sound s lik e a prett y goo d argument t o me. I assume you have some kind of response?" "Suppose white America were a corporation an d the victims wer e DES kids . A har m t o on e generatio n ca n easil y caus e foreseeabl e harm to the next one, and so the law has held." 22 "But tha t addresse s th e othe r side o f th e equation , Rodrigo—th e plaintiff side . Today's whit e folk s ar e saying that the y don' t deserv e to b e defendants—tha t w e ar e suin g th e wron g party , s o t o speak . Those who did unspeakably evil things to us are no longer present."

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"That's wh y I used th e analog y o f th e corporation . N o one would argue tha t a corporation shoul d ge t of f th e hoo k merel y becaus e it s board o f director s ha s change d o r it s chie f executiv e retired . Th e responsibility run s t o th e corporatio n an d s o we allow th e DES kids to see k redres s agains t th e firm tha t manufacture d o r markete d it , even thoug h i t i s many years later an d th e principal character s hav e changed. And th e sam e is true o f other kind s of corporate liability — it doesn't en d just because the cast of characters has changed. " "And, in the case of the country, thos e directors never include us, of course , an d alway s happen t o be white. But, I wonder abou t you r analogy. Are you saying that a country is like a corporation?" "Of cours e it is, " Rodrigo replied. "It' s just tha t we'r e not used t o assigning guil t tha t way . White victims , lik e mos t o f th e DE S kids, elicit sympathy . An d w e ar e gla d t o recogniz e white-on-whit e re sponsibility. Black-on-white is another matter. " "But there are differences betwee n a corporation an d a country," I insisted. "Corporation s nee d t o b e abl e t o d o business , ente r int o contracts, and so on, over time. No one would deal with them if they couldn't be held liable." "But th e sam e i s tru e o f countries . The y borro w money , issu e bonds, and enter into treaties, all intended to be in force much longer than th e lif e o r term o f the person, usuall y th e chie f executive , wh o borrows, issues, or signs them. " "But thos e g o to specifi c instruments , lik e a bond, tha t everyon e understands ar e to be enforceable fo r thei r duration . Moral debts are different, don' t you think?" "They're different , o f course , but n o les s enforceable—assuming , of course , tha t th e wil l i s there . Th e Unite d State s require d tha t Germany mak e reparation s t o Israe l an d th e victim s o f th e Holo caust, eve n thoug h th e Naz i governmen t ha d bee n disbande d an d most o f it s leader s execute d o r imprisoned. W e made reparation s t o our ow n Asian-Americans wh o were interned durin g the war and t o Indian tribe s whos e land s wer e taken , i n som e case s a centur y o r more ago. If there is any difference betwee n our case and those, it lies in th e directio n o f eve n greate r equity . Th e dominan t cultur e i s prepared to accept responsibility running to a second or third generation if that secon d or third generation is white or Japanese, but not if it is black." "So yo u ar e saying, " I summarized , "tha t ther e i s nothin g tha t

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formally bar s a program o f redress for us . What stand s in th e way i s the implici t convictio n tha t black s ar e simpl y wort h less—tha t harms to them are less worthy of redress than harms to others. Since we are unworthy o f full consideration , harm s t o us are like steppin g on an insect or a dog's tail. Anyone who feels deep distress over what happened to us would be considered abnormal. " "Even curren t civi l right s la w show s that . Nowher e els e i n th e law o f remedie s d o you se e requirements lik e intent, 23 stric t causa tion,24 an d narrow tailorin g o f remedies. 25 Nowher e els e d o you se e excuses such as business necessity allowing one to perpetrate a clearcut har m o n another. 26 W e are not entirel y withou t redress . Rather , it's tha t mainstrea m societ y doe s no t tak e th e nee d t o redres s ou r injuries a s seriously as it does injuries t o its own." "And that is what you mean, I take it, by law's bogus neutrality." "Exactly," Rodrig o replied. "Or , rather, b y the disingenuous qual ity o f th e conservativ e argument . W e coul d easil y kee p i n place — strengthen, even—measure s lik e affirmativ e actio n withou t vio lating any moral rule that we also apply elsewhere." "It just occurre d t o me that th e United State s insists o n the mos t meticulous for m o f justic e fo r th e MIAs , mos t o f who m ar e white . Even thoug h mos t o r al l o f the m ar e surel y dead , w e persis t i n order t o provid e surceas e fo r America n families . An d w e continu e punishing Vietna m a s a natio n becaus e i t drag s it s fee t abou t re turning th e ashes . Bu t wha t abou t th e othe r hal f o f you r equation , Rodrigo? No t jus t th e perpetrator s o f slaver y an d racis m ar e gone . Conservatives insis t th e victim s are , too . Ho w d o yo u dea l wit h that?" The Othe r Half o f the Conservativ e Argument—The Middle Class So n or Daughter o f the Black Brain Surgeon "That's another argument you hear. It's considered a clincher, but, like th e first one , it' s onl y trotte d ou t agains t us . I n propert y law , fraud actions are routinely permitted for one cheated out of an inheritance, even though the fraud too k place before his or her birth." "And you mentioned the DES cases before," I added. "In those, we allow th e no w grow n woma n t o su e fo r he r medica l injuries , eve n though th e manufacturer's negligenc e occurre d before sh e was born, when they produced or sold the defective medication to her mother. "

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"Right. And I'm no t sur e you know abou t this , Professor, becaus e it's not you r field, but there' s a whole new branch o f tort la w calle d wrongful life 27 an d wrongfu l birth. 28 Thes e ar e fo r preconceptio n harms an d one s tha t tak e plac e whil e th e fetu s i s in utero. Thes e cases allow the child to sue the doctor who was negligent, for exam ple i n no t counselin g th e forty-five-year-ol d mothe r o f th e ris k o f Down's syndrome , even though th e child was not yet in being, or in some cases even conceived." 29 "Yes, I'v e hear d o f thos e cases, " I said , wit h a sligh t edg e o f irritation. "Eve n at my age, we're expected to keep up, Rodrigo." Rodrigo blushed slightly, then went on. "What I meant, Professor , was tha t yo u don' t teac h torts . I know you'r e ver y widel y read . S o I'm sur e you'v e rea d abou t th e ne w second-generatio n Holocaust survivor syndrom e tha t doctor s ar e documenting. 30 I expec t we'l l have test cases soon." "Are yo u suggestin g tha t ther e shoul d b e a battered-slav e syn drome, or something similar? I'm no t s o sure how far you'll get wit h that." "It make s perfectly goo d sense, even though th e actual victims of direct slaver y are no longer in the world. Slavery wasn't s o long ago. Charles Black, for example, tells how he learned to play the harmonica fro m a man wh o ha d bee n a slave. 31 And th e socia l devastatio n and destructio n o f culture , family , language , an d tie s tha t accompa nied slaver y surely has effect s eve n today. Black people have to read diligently t o lear n abou t thei r tradition s an d thei r forebears. 32 The y rarely receiv e inheritances ; man y whit e peopl e do. 33 On e reaso n i s that blacks started out poor. There were no forty acres and a mule for freed blacks. 34 Indeed , afte r Reconstructio n ended , a syste m o f Ji m Crow law s subjecte d black s fo r fifty years t o condition s littl e bette r than thos e they suffere d unde r durin g slavery. 35 As recently as 1960, law school s onl y ha d a toke n representatio n o f blacks . Severa l na tional law schools even had express rules against admitting blacks,- a number of schools had not graduated one in their entire histories." "Past discrimination cut s down on the competition. White people today have an easier time getting ahead because of it," I added. "I'm sur e you'v e hear d th e pool-is-so-smal l argumen t fro m whites," Rodrigo said. 36 "Of course . Man y o f the m us e i t agains t u s i n connectio n wit h higher-level hiring , suc h a s la w schoo l facult y positions . Facultie s

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can't b e expecte d t o desegregat e al l a t onc e becaus e th e poo l o f available, college-traine d blac k professional s i s s o small . What the y rarely observe is that white culture made it that way. The smallnes s of th e pool , if true , ough t t o b e a n argumen t i n favo r o f affirmativ e action. Instead , perversely , i t i s offere d agains t it , a t leas t i n an y effective, quick-actin g form. It' s ofte n struc k m e a s odd that n o on e seems t o notic e this . The y g o o n blithel y citin g th e argumen t a s though th e poo l becam e s o smal l al l b y itself , lik e som e natura l misfortune. But a meteorite didn't hit us ; racism and slavery did." "That's wha t I mean t earlie r b y ho w neutra l principle s work, " Rodrigo added . "The y loo k neutra l onl y t o th e perso n wh o applie s and cite s the m a s a matte r o f faith . Anythin g familia r seem s true . Recovery fo r preconceptio n tort s no w seem s familiar . Bu t harm s t o blacks because of the country's inception and what took place then— that seem s strange . But the cas h value o f neutral principles, a t leas t as applie d t o us , i s tha t w e ar e treate d poorly , denie d jobs , refuse d compensation—and fin d ou r mistreatmen t justifie d b y flimsy ex cuses like the pool one." "A new legal theory, pragmatism, say s we should look to the cash value of theories," I added, "no t thei r elegance , rhetorical quality , or the way they make you feel good." 37 "On that basis , neutral principles fail miserably , excep t a s a justification fo r white supremacy. " "At which they're highly successful," I added wryly. "Many white folks den y any sort of collective debt, reasoning tha t they are personally innocent of racial wrongs. They fail to notice that they benefit fro m th e system of racial injustice tha t existed earlier in a raw form, and today in a more refined, veiled one. Many internalize and unconsciousl y subscrib e t o racis t valu e systems , accordin g t o which our people are dangerous, lascivious, lazy, and stupid. 38 Thes e stereotypes ar e embedded in millions o f psyches and find expressio n in thousands of plots, scripts, children's stories, and narratives. They render u s one-dow n i n dail y transactions , includin g man y tha t clearly matter , lik e interviewin g fo r a jo b o r applyin g fo r a n apart ment. 39 Despite their denial of this collective debt, white folks, especially conservatives , ver y muc h wan t black s t o obe y th e la w an d Constitution tha t thei r iniquitou s forebear s lai d down— a Constitu tion tha t contain s n o fewer tha n si x clauses designe d t o protect th e institution of slavery."

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I straightened u p o n Rodrigo' s couch . " I think I see what yo u ar e saying. Law-and-order conservative s wan t t o den y an y social obliga tion stemmin g fro m th e racis t behavio r o f th e earl y Colonial s an d Southern plantatio n owners . Bu t the y ar e happ y t o remin d u s tha t we owe obligations to the document an d nation tha t the y set up. We owe obligations arisin g out o f that socia l contract, bu t n o obligatio n is owed t o us arising from th e abus e we suffered i n connectio n wit h it. Ahistorical young conservatives want th e benefit o f social compliance fro m black s wit h a syste m tha t provide s youn g white s wit h security, schools , an d liberty . Bu t the y don' t wan t t o pa y fo r i t b y recognizing a deb t the y ow e black s arisin g fro m thei r forefathers ' wrongs." "It's illogical," Rodrigo added. "A little bit like arguing for a moral bankruptcy o r forgiveness progra m fo r whit e society , whil e stil l in sisting tha t blacks , wh o receiv e muc h les s benefi t fro m th e sur rounding culture , obe y al l it s law s an d code s o f conduct . Logically , any obligation s black s owe , stemmin g fro m th e sam e transaction , should b e canceled a s well. Our syste m i s based o n continuin g con sent t o a scheme lai d dow n i n th e past. 40 I f a corporation borrowe d money to set itself up, it can't simply repudiate it later on the ground that the original treasurer died. " We wer e bot h silen t fo r a moment . Then , I said , "Rodrigo , yo u know as well as I that ther e is a companion argumen t tha t conserva tives marsha l agains t affirmativ e actio n an d othe r program s fo r blacks. It' s related , I think , t o th e neutralit y argument s yo u jus t discussed. But it's a little different. " "And that argument is . . . ? " Rodrigo asked. "I don't kno w i f w e have th e tim e t o addres s it . Whe n doe s you r reception start?" Rodrigo looke d a t hi s watch . "Fiftee n minutes . Bu t don' t worry . Laz and Giannina said they would be there. If I'm a few minutes late, nothing will happen. Jus t mak e sur e you're not lat e for your dinner . What's the third argument?" Affirmative Actio n vs . the Meri t Principl e "It's tha t affirmativ e actio n violate s th e meri t principle , sinc e i t allows individuals who lack the usual credentials to get a job or place in a la w schoo l class . Meri t i s on e o f thos e neutra l principles , lik e

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the tw o yo u jus t addressed—th e requirement s o f a guilt y offende r and a deserving victim—that conservative s love to trot out. " "I've talked abou t tha t wit h Laz . He's much mor e open to reaso n than you might think. But other conservatives are less so." "How do you answer the objection, then? " I asked. Rodrigo downe d th e las t o f hi s coffee , an d gesture d t o as k i f I would lik e more . I shook m y hea d no , s o he continued . "Th e argu ment i s closel y relate d t o th e first one . I t hold s tha t no t onl y ar e middle-class black s livin g toda y no t th e victim s o f racism , sinc e American society is now formally equal , but that affirmative action' s operation derogate s fro m th e sacre d principl e o f merit . Th e boos t that black s get ensure s tha t job s and places at universitie s ar e filled with people less qualified tha n the ones who would get in otherwise. Blacks en d u p gettin g slot s tha t shoul d g o to mor e highl y qualifie d whites." 41 "We talked about this before, I think," I said. "The first time we met, and then again later. We agreed that meri t criteria never operate as neutrally a s they are supposed to . They en d up applied against a background o f expectations, pre-understandings , and exception s tha t assur e tha t th e mor e familia r candidat e win s out, even though they have little, if any, connection with the criteria we advertis e o n th e jo b descriptions . Privat e universitie s operat e legacy program s unde r whic h son s an d daughter s o f th e alumn i ge t in unde r criteri a muc h les s stringen t tha n others. 42 Whe n w e hea r about this , we nod an d make allowances : 'But o f cours e .. . ' we say. They als o admi t athlete s an d musician s fo r th e schoo l ban d unde r much lowe r standard s tha n th e othe r students. 43 N o on e consider s those cases of affirmative action , or worries that the star quarterbac k will en d u p feelin g stigmatized . School s emplo y geographi c prefer ences according to which applicants from far away are admitted wit h lower credentials. 44 Thi s i s suppose d t o enric h th e enterin g class , even though all the students watch the same TV programs and study from th e same textbooks in high school." "Are you saying that all this is unjustified? Isn' t it natural to favor one's own kind?" "Perhaps it is," Rodrigo conceded. "We certainly do it all the time. White folks, for example , hire each other's kids to mow thei r lawns . They write artfully crafte d letter s of recommendation for each other , something that happens for very few blacks. When a favorite studen t

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approaches a teacher about extra credit work that enable s him or her to change a 'B 4-' to an 'A-' in an honors class, that doesn' t see m lik e affirmative action , bu t i t is . The entir e syste m o f favors , courtesies , and informal networkin g that goes on every day, and from whic h our people ar e almos t entirel y excluded , i s reall y a for m o f affirmativ e action: I t enable s peopl e t o ge t grades , jobs , entranc e t o desirabl e schools, and so on, without regar d to formal merit/ ' "But people of color network and help each other out all the time, too," I pointed out . "True—but meri t become s a n issu e onl y whe n a handfu l o f u s start gettin g ahead. When a few paltry blacks or Mexicans get into a law school because of affirmative action , conservative s are outraged. That's wha t I mean b y 'unprincipled, ' the y say , neatl y ignorin g th e letter of recommendation, inheritance , or stake from thei r father tha t enabled them t o buy their first house." "Merit i s whit e people' s affirmativ e action , a s w e sai d before, " Rodrigo added. 45 "White folks point out that we weren't enslaved , as though that is a killer argument. Yet they weren't enslaved, either. " "And, nevertheless , benefi t fro m a n enormou s syste m o f inter locking favors and informal practice s that assur e that they get ahead. White folk s ar e th e tru e affirmativ e actio n babies, " Rodrig o said. 46 "The meri t charg e i s no t onl y hypocritica l i n overlookin g ho w whites benefi t fro m non-merit-base d favor s an d exceptions , i t over looks ho w meri t ofte n fail s t o wor k fo r us . Eve n whe n a blac k o r Mexican acquire s al l th e standar d earmark s an d accoutrement s o f merit, suc h a s hig h tes t score s o r occupationa l prestige , h e o r sh e still ends up excluded and marginalized. " "Ellis Cose wrote a splendid book on the subject. " "I wa s jus t readin g it, " Rodrig o said , pointin g a t hi s bookshelf . "The Rage of a Privileged Class. 47 Ro y Brook s showe d th e sam e thing—blacks o f al l incom e group s ar e worse of f tha n whites , hav e more frustration , experienc e mor e discrimination , suffe r mor e ill ness, are hassled more by the police." 48 "We both kno w the dismal statistics," I added. "College-educate d black me n ear n onl y a fe w dollar s mor e tha n whit e hig h schoo l graduates.49 Onl y blac k federa l judge s ar e regularl y impeache d an d charged with corruption. 50 Th e police sto p and arres t conspicuousl y successful blacks , thos e drivin g Porsche s o r emergin g fro m com -

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muter trains , fo r example . Ther e ar e fe w blac k ful l professor s a t universities 51 an d no t a single black CE O of a Fortune 50 0 corpora tion/' 5 2 "The reaso n i s no t har d t o see/ 7 Rodrig o continued . "Th e blac k who evidence s merit , wh o i s a neatly dresse d commuter , fo r exam ple, o r i s drivin g a n expensiv e ca r lat e a t night , strike s everyone , including th e police , a s anomalous , a s ou t o f place. 53 Wealth y o r extremely successfu l black s en d up facing more challenge s an d hat e stares tha n th e middle-incom e blac k lette r carrie r o r custodian wh o goes home to a house in an all-black neighborhood a t th e en d of th e day." 54 "Norms never work," I summarized. "W e were talking about thi s once before. 55 And the same is true with th e neutralist one . We give lip servic e t o th e ide a tha t w e shoul d trea t al l person s wit h equa l respect. Bu t whe n a police office r stop s th e blac k executiv e wh o i s jogging near hi s hom e i n a wealthy neighborhoo d lat e a t night , thi s seems to us normal an d understandable. We're not offended . Rather , we sympathize with the police. After all , blacks are responsible, in a statistical sense, for a large proportion o f the crime, we reason. 56 It' s a lamentabl e truth , an d s o the police must , unfortunately , ac t o n i t for the safety of all of us." "And whe n the y do , it strike s everyon e a s perfectl y understand able, neutral, and nonracist," Rodrigo concluded. We both started . Someon e was knocking a t th e door . "Com e in, " Rodrigo said . A pale , smilin g youn g ma n dresse d i n a nea t sui t stepped inside. "Laz! Come in. You remember th e Professor, don' t you?" Rodrigo said. "Of course . Welcom e t o th e la w school, " Kowalsk y said , ex tending hi s han d an d shakin g min e firmly. " I hop e you'r e her e fo r the conference. " "Unfortunately, I can't stay . I'm her e for a board meeting. But I'l l try t o dro p b y tomorrow, " I said . " I be t you r receptio n i s abou t t o start." "The Progra m Chai r i s abou t t o speak . Bu t ther e ar e plent y o f seats if you'd like to join us. And there's more than enough food. " "I'd better be going," I said, standing up. "I have a dinner meetin g soon. But I'll see the two of you tomorrow. I want to hear your theory of a race war," I said smiling at Rodrigo's young colleague.

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"Rodrigo quote s m e to o much. But I'll b e happy t o run i t by you. When do you think you can make it?" "My meeting ends at noon." "How about a quick lunch?" Rodrigo suggested. "HI do my best," I said.

Welfare Leeches: In Which Rodrigo Critiques the Conservative Program of Welfare Reform My boar d meetin g wen t a littl e long , s o tha t b y th e tim e th e ca b dropped m e a t Rodrigo' s schoo l th e conferenc e ha d alread y broke n for lunch . A n empt y semina r room , excep t fo r neatl y arrange d pile s of paper s an d programs , greete d me . Jus t a s I was wonderin g wher e everyone ha d gone , I hear d a pai r o f familia r voice s fro m behin d me. Rodrig o an d Kowalsk y wer e walking dow n th e hall , engage d i n animated conversation . "Professor! We were wondering if you would make it. Are you still interested in lunch?" "Very," I said. "These legal services meetings are truly bare bones. All I've had since last night is coffee an d a bagel. I'm starved. " The tw o youn g friend s consulte d quickly , the n Rodrig o said , "How abou t Southwestern , Professor ? W e coul d wal k ove r t o thi s little place in th e shoppin g center acros s th e street . Everyon e else is eating in the conferenc e center . We've got almost a n hour and a half before the next session. " "Are you sure we shouldn't ea t with the group?" I asked. "I'm positive," Rodrigo replied. "Giannin a i s sitting in with the m this time . All the others have meal tickets, since they are staying in the conference dorm . The three of us aren't, so we're taking turns." "It's forma l equality, " Kowalsk y said , smiling . "M y favorite lega l principle, as I'm sur e you've heard." "Shopping cente r foo d sound s fine t o me . It'l l sav e som e time , plus, I love Southwestern. I'd like to hear how you made out i n your discussion wit h Elmour . An d you agree d t o tel l us mor e abou t you r theory of race riots." Kowalsky wa s silen t fo r a moment. Then , "Oh , yo u mea n a race war. I'm happ y t o do so, although i t doesn' t exactl y make my fello w

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conservatives loo k good. It's jus t a hypothesis/' h e explained, a s we waited for a break in the traffic . "Laz i s a n equa l opportunit y trasher, " Rodrig o said , givin g hi s friend a n affectionat e cla p o n th e back . "He' s a s toug h o n mean spiritedness i n the conservativ e cam p as he is on looseness an d lac k of rigor on our side. Here we are." A few minute s later , w e were studyin g th e men u i n wha t turne d out t o be a plain but attractiv e natura l food restaurant. "No t ba d for a shopping center menu," I said. "What do you recommend?" "Southwestern foo d i s their specialty, " Rodrig o replied. "I' m having the menudo. Giannina loves this place." "I think I'll try that myself," Kowalsky said. "And to answer your question, Professor , Elmou r and I had a great talk about church-stat e law. H e mad e a numbe r o f goo d point s a t m y expense , althoug h i t turns ou t we'r e no t a s fa r apar t a s yo u migh t think . I t seem s hi s father wa s a Baptist minister. Oh, here's our waiter." I quickl y scanne d th e men u whil e m y tw o youn g friend s place d their orders . "Wha t d o you thin k o f th e grilled vegetables?" I asked. "I've been cutting down on meat. Doctor's orders." Rodrigo made a sympathetic face an d said, "I'v e never had it, bu t everything here's good." I nodded to the waiter: "I'l l have that," an d he departed. After a short pause while a second waiter put dow n our chip s and salsa, I asked, "Ho w was this morning's session?" The two young men looked at each other. Then Rodrigo spoke up: "It wa s abou t welfar e cutbacks—o r reform , a s ou r conservativ e friends lik e t o say . Elmour an d on e other perso n were o n th e panel . They reviewed the Republicans' proposals and also the failed efforts , beginning in the sixties and early seventies, on the part of liberals t o have subsistenc e declare d a fundamental right. 57 I t was sobering , t o say the least." Then, afte r a pause, " I think La z was the only on e in the room who wasn't frowning. " We both looke d ove r at Laz , who replied evenly : " I have no problem whatsoeve r wit h that . Th e Constitutio n doesn' t guarante e happiness, or even that you won't go hungry. It guarantees only the right to pursue happiness . If som e peopl e don' t wan t t o wor k o r ar e con tent t o be poor, that' s thei r business , not th e government's. Povert y is a grea t incentiv e t o fin d work . I woul d exclude , o f course , th e

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helplessly disable d an d singl e mother s wit h infants . Everyon e els e should ris e o r fal l accordin g t o thei r merits . I don' t mea n t o b e heartless, bu t that' s ou r system , an d it' s responsibl e fo r ou r havin g the highest standard of living in the world." "Fifth highest , actually," Rodrigo interjected . "Depending on how you count," Kowalsky quickly retorted. "An d don't ge t m e wrong . I agre e wit h man y o f th e point s mad e thi s morning connectin g povert y wit h socia l pathology . Conservative s are no fonder o f crime than you liberals are. We just don't thin k tha t rewarding singl e mothers fo r havin g mor e babies an d paying peopl e for not working is the way to fight it." "But you r peopl e ar e cuttin g jo b trainin g an d ai d t o schools, " Rodrigo replied . "Ho w ar e th e poo r goin g t o pul l themselve s u p without th e trainin g an d educatio n th e mor e fortunat e provid e fo r their children almost as a matter of course?" "Basic education I have no problem with," Kowalsky replied. "Although I wish som e o f you liberal s would conside r supportin g alter native schools and voucher systems for those who want to opt out of the cookie-cutter one-size-fits-all approach. " "We might suppor t thos e programs," I chimed in , "i f you r people were a littl e mor e accommodatin g o n basi c socia l suppor t fo r th e desperately poor . Yo u see m t o b e mor e reasonabl e o n thi s poin t than som e o f you r fello w conservatives , I mus t say . Murra y an d Herrnstein, fo r example , writ e tha t w e ar e doome d t o suffe r a large and growin g underclass. 58 I f w e don' t hol d th e lin e o n welfar e an d overreproduction o n th e par t o f th e poor , w e wil l en d u p bein g swamped with people and debt." "We're alread y swampe d i n debt, " La z quickl y replied . "Th e na tional deb t no w stand s a t more tha n 4. 8 trillion dollars , the most of any industrialized country . Our annual deficit i s so big that th e conservative Congress is finally thinking of doing something about it. " "But welfar e fo r th e poo r constitute s onl y a smal l par t o f th e federal budget . Les s tha n on e percent , accordin g t o a n articl e I was just reading," I pointed out . "Other federa l handout s accoun t fo r muc h more, " Rodrig o adde d quickly. Then , lookin g ove r a t La z he asked, "Woul d yo u favor cut ting th e militar y budget ? We'r e a t peace , bu t you r conservativ e friends wan t t o giv e the militar y a s much hardwar e a s usual, i f no t more." Rodrigo looked u p brightly an d motioned t o th e waiter, wh o

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was passing nearby. He whispered something, then looked up to hear Kowalsky reply: "National securit y i s one of those areas we can't ver y well priva tize o r paw n of f o n individua l initiative . Yo u liberal s ge t excite d when citizens want to own guns or form militias. " "Touche," Rodrig o replied, grinning . "Bu t that' s onl y on e area of federal handout s t o fat cats . Thanks," he said to the waiter who had just brough t a telephone. "Let' s se e if thi s works. " He fished i n hi s briefcase for a moment while mumbling something almost inaudible: "You won't believe how much. " After a second, Rodrigo said, "There! Where were we?" "Welfare cost s and fat cats," I prompted. "Right. Giannina and I were just starting to do this before. Do you want to see how much money this country spends on welfare for th e rich and middle class?" "I'd love to," I said. "I've bee n urgin g th e eliminatio n o f protectiv e tariff s fo r U.S . industries for years," Kowalsky quickl y interjected. "They'r e a form of handout and are bad for the economy. " I looked over to see what Rodrigo was doing. "I go t thi s las t month, " Rodrig o explained , indicatin g th e tin y laptop computer he had just pulled out of his briefcase and connected to the restaurant's phone line. "It's great on planes." Rearranging our food, whic h ha d jus t arrived , h e punche d i n a fe w numbers , then : "Here we are. Just like Giannina found before. Social Security, a form of welfare for middle-class widows, many of whom haven't worked a day in their lives , 22 percent o f the budget—almost forty-fiv e time s more tha n ai d fo r dependen t children , th e progra m conservative s want t o cut . And , oh ; Loo k here. " Hi s fingers practicall y fle w ove r the keyboard . "Anothe r bi g one—Medicare , 1 1 percent. Neithe r o f these i s aime d a t th e poor . They'r e entitlemen t programs—give aways, really, and they total almost one-thir d of the federal budget. " "I didn' t sa y I favored thos e programs," Kowalsk y replie d a littl e defensively. "I' m against welfare for the rich as much as for the poor. For example , hardl y an y conservative s i n Congres s ar e urgin g tha t we take a look a t th e national far m surplu s program. I favor cuttin g that. It's wasteful an d sets up exactly th e wrong sort o f incentive. It rewards farmers fo r no t producing . There's no excus e for it . Quotas , too. Latin American and Caribbean sugar is much cheaper to produce

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than th e America n kind . Suga r quota s ar e i n effec t a subsid y t o American industry, and so on for all the others." "Let's take a look/' Rodrig o said and performed ne w magic on his keyboard. "Hmmm . It' s a big one, too . Look a t that—$9. 8 billio n a year on farm income supports, according to the Congressional Budget Office. Compare d t o that , th e SBA' s $500 million an d th e $67 5 million th e fed s spen d o n cultura l agencie s ar e 'chicke n feed / a s on e commentor put it. The same writer points out that for many farmers, annual support s ar e so large that the y ar e the farmers' bigges t singl e source of profit. Payment s sometimes go to farmers wh o agree not t o plant crop s a t all . Othe r time s the y g o to pro p u p crop s tha t other wise are not profitable. " "Absurd," Kowalsky agreed. "A form o f welfarism w e should drop as soon as possible." "And it' s nearl y a s large a n ite m a s AFDC, th e mai n federa l pro gram for poo r families i n need of relief," Rodrig o replied. "I f conser vatives ar e reall y i n favo r o f neutra l principles , the y shoul d b e a s indignant ove r thi s for m o f giveawa y a s ove r welfar e handout s t o single blac k mothers . And , hol d o n a second . Here . Giannin a wa s looking fo r thi s before . $1. 4 billion fo r pric e subsidie s fo r bi g suga r farms alone. That's almost as much as we pay for heating fuel subsid ies for the poor." "Which House Republicans want t o cut out," I added. "I might kee p that i n myself," Kowalsky added quietly. "I'v e been cold in the winter. It's nothing any human should have to tolerate." "Oh, and look. They also want t o eliminate $37 7 million for lega l services fo r th e poor . Ye t a t th e sam e time , th e curren t budge t pro vides $70 0 millio n fo r alcoho l fue l producers , wh o otherwis e coul d not compete . Congress would leave in a $400 million ta x subsidy fo r entertainment expense s fo r businessme n bu t cu t $28 1 millio n fo r tuition grant s fo r nationa l servic e volunteers . Th e Republican s ar e defending a loophol e tha t allow s wealth y peopl e t o renounc e thei r citizenship t o avoi d taxes . $40 0 millio n a yea r i n revenue s lost , according to the Democrats, who want to close it." "I'm agains t mos t form s o f corporat e welfare, " La z replied , hi s voice rising slightly. "It's just as bad as the other kind. " "Look here. " Ther e wa s n o stoppin g Rodrig o now . Ignorin g hi s meal, whic h wa s growin g cold , h e wen t on : "Tw o billio n a yea r

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helping high-tec h companie s buil d a space statio n tha t wil l benefi t no on e excep t themselves . Oi l companie s ge t t o kee p thei r favorit e tax break, t o offse t thei r so-calle d intangibl e drillin g expenses—an other $1.2 billion a year." Click, click, click. His fingers flew over the keyboard, a s they had on two other occasions . I wondered whether I would eve r acquir e hi s technologica l wizardry . I started to o lat e i n life, I thought , gloomily . "Let' s tr y thi s othe r dat a base... . Ah ! I thought F d find it here . The taxpayer s help the Department o f Agriculture t o th e tun e o f $11 0 millio n a yea r advertisin g abroa d suc h U.S.-made delicacie s a s McDonald' s Chicke n McNuggets , Pillsbur y muffins, an d Sunkis t oranges . They eve n trie d t o sel l Gall o wine t o the French . I t didn' t work . Oh , here' s anothe r bi g one—the federa l mortgage interes t deduction , whic h benefit s mainl y middle-clas s homeowners. Mor e than—let' s see—nearl y a third o f wha t w e pa y at al l levels , stat e an d federal , fo r welfar e subsidie s fo r th e poor . Throw i n foo d stamp s an d it' s . . . stil l one-thir d th e amount . And , oh my—twenty billio n t o bail out Mexico , mainly for the benefit o f U.S. investors and Mexican oligarchs." Rodrigo wa s furiousl y scribblin g figures dow n o n th e napkin . "I f you two will give me a second, I think I can come up with a total." We honore d hi s wish . "I'v e go t it, " Rodrig o announced , lookin g up. "If you add in all the figures I just mentioned, plus tax breaks for those unproductive industrie s . . . . Let' s see . .. ho w many U.S. citizens are there?" Kowalsky an d I looked a t eac h other . "Abou t 26 0 million? " La z asked. "Assume 280 . There ar e al l thos e illega l aliens , a s you r buddie s like t o cal l them . Divid e ou t an d yo u ge t . . . . Well , look a t that . I t looks lik e w e pay quit e a bit mor e fo r welfar e fo r th e middl e class , the wealthy , an d industrialist s tha n fo r th e country' s poor—thre e times more, in fact. " "Since there are fewer rich people than poor or lower middle-clas s ones," I added, "i t look s a s if we, as a society, en d up paying a good deal more per person to keep the rich afloat tha n the poor." Rodrigo disconnecte d th e telephon e wire , hande d i t bac k t o th e waiter, and snapped his computer shut. 59 "Wha t do you think, Laz?" We wer e silen t fo r a moment . The n Kowalsk y sai d quietly , "I t looks t o m e a s thoug h th e rea l welfar e leeche s i n ou r societ y ar e

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middle-class retiree s on Social Security, veterans, investors, and corporations wit h stron g lobbies . The y fee d fro m th e publi c troug h a t least a s muc h a s welfare mother s o r littl e blac k kid s i n Hea d Star t programs. Yet they do not se e themselves as parasites at all. It's all a matter of perspective, as you Crits like to say, although in the case of Social Security widows, at least their husbands worked at some time, if onl y i n th e past . An d th e farmer s w e hel p ar e doin g something , even if only letting their fields go fallow." "Of course , a black welfar e mothe r i s doin g something/ ' I inter jected, "namely , raisin g he r child . An d eve n i f th e fathe r i s no t working, black America worked long hours without pay not too long ago, when we were all in slavery." "I hav e n o quarre l wit h that, " Kowalsk y added . " I thin k al l th e freeloaders shoul d stand on the same footing, corporat e or individual, black o r white , middl e class o r poo r alike . W e shoul d scrutiniz e and ruthlessl y cu t ever y program tha t i s not absolutel y essentia l fo r national securit y o r to sav e someone's life . An y more tha n tha t an d you sa p individual initiative . No t t o mentio n ad d to th e ta x burde n of al l th e res t o f us. It's ba d for th e marke t an d bad for ou r nationa l economic health. There is no excuse for it, any of it." "Yet, we'r e thinkin g o f cuttin g relie f onl y fo r th e alread y poor , and eliminating programs like job supports, Head Start, race-targete d college scholarships , an d affirmativ e actio n tha t ar e crucia l fo r up ward mobilit y fo r th e communit y o f color," 60 Rodrig o summarized . "What do you think is going on?" The waiter arrive d to clear our plates. "Would you gentlemen lik e coffee o r dessert?" Rodrigo looked a t his watch. " I wouldn't min d some . We've got a little while. " The waite r lai d dow n th e desser t menu s an d too k ou r orders for coffee . Kowalsky leane d forwar d i n hi s booth . "A s yo u know , I' m a n equal opportunity critic . I have a theory, although I'd like the two of you t o agre e not t o represen t i t a s any more tha n that . I don't wan t to seem too hard on some of my fellow conservatives. " Both Rodrig o an d I nodded. "We'l l tak e i t i n tha t spirit, " I promised. "What' s goo d her e i n th e wa y o f desser t tha t m y docto r wouldn't disapprov e of?" Kowalsky and Rodrigo looked up sympathetically. "Yo u could tr y the yogurt ^ullato. Giannin a recommends it," Rodrigo suggested.

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"Okay/7 Th e waite r too k ou r orders , frullat o fo r me , bunuelo s with powdered sugar for my two young friends, an d departed.

Kowalsky's Theory: The Upcoming Race War "Good choice, Professor," Kowalsk y said. "You can have a bit of my confection, i f you like." He reminded us of our promise, then began: "Have you ever wondered why my fellow conservatives seem bent on eliminating affirmative action ? I mean not simply cutting it back, but eliminating—destroying i t entirely?" "As an issue, you mean?" I asked. "Exactly," Kowalsk y answered . "W e all kno w wha t reason s the y give fo r opposin g it . I subscrib e t o som e o f them , a s yo u know , although i n m y opinio n the y cal l fo r restructuring , no t eliminatin g the program." "I giv e up, " Rodrig o interjecte d "Wh y d o conservative s wan t t o put an end to affirmative action? " "I wa s thinkin g abou t thi s yesterday , afte r m y argumen t wit h Elmour. In a way, affirmative actio n is the perfect issu e for the Right. It neve r goe s away . I t reliabl y deliver s votes . And i t enable s peopl e like m e t o point ou t ho w unprinciple d yo u liberal s ar e and ho w w e are morall y superior . Yo u fal l righ t int o ou r hand s ever y time . It' s been the perfect vote-getter , year after year . Yet, my fellow conserva tives across the land are trying to get rid of it, decisively and forever . Initiatives in California an d other states, bills in Congress .. ." 61 "And thos e thre e Suprem e Cour t decision s jus t thi s las t term, " Rodrigo interjected . "Right," Kowalsk y replied. "Makin g it harder for state s to redra w voting district s s o a s t o increas e minorit y representation, 62 makin g it easie r fo r schoo l district s t o en d desegregatio n plans, 63 an d applying th e higher , constitutiona l compellin g interes t standar d t o federal affirmativ e action 64 —all thes e ar e evidenc e o f th e sam e thing. Th e politica l Righ t i s prepare d t o destro y affirmativ e actio n once and for all." "And yo u thin k thi s mean s somethin g mor e tha n jus t muscle flexing?" I asked. I was curiou s wher e th e young conservativ e wundeikind wa s going. "I do," Kowalsky continued . "Otherwis e th e Righ t woul d op t fo r

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a series of gradual cutbacks, and not sweepin g measures like Califor nia's Civi l Rights Initiative. Affirmative actio n enable s th e Republi cans t o argu e tha t the y ar e th e defender s o f th e jus t an d th e true . It reliably cause s indignatio n o n th e par t o f working-clas s an d ethni c whites, who can be led to believe blacks are getting away with something." "Even thoug h ou r level s o f schoo l drop-out , unemployment , sui cide, poverty, and infant mortalit y are the highest in the country and approaching those of the Third World," Rodrigo added. 65 "And you r peopl e stil l la g i n undergraduat e an d graduat e enroll ment, 66 middl e an d uppe r managemen t jobs, 67 an d virtuall y ever y circle tha t matters—excep t sport s an d entertainment . A s I said, it' s a perfec t issue . I t enable s m y sid e t o rall y th e troop s an d depic t liberals as the cause of unhappiness an d job insecurity o n the part of blue-collar whites, like my family," Kowalsk y added. "And I suppose you have a theory for why the y ar e acting as they are?" I asked. "I think they are gearing up for a race war," Kowalsky said quietly. "It's not a conspiracy, exactly. Rather, I think there is a general sense that it' s tim e t o pick a fight. Caucasian s wil l ceas e being a majorit y in thi s countr y abou t midwa y i n th e nex t century. 68 A t tha t point , numerical an d votin g powe r should , logically , shif t t o group s o f color—blacks, Asians , an d Latinos . Whit e opinion-maker s don' t want thi s t o happen. So, they're gearing up for a fight. It' s one of th e oldest trick s i n th e world—provok e you r enem y unti l h e responds , then sla p hi m dow n decisively . Yo u get t o impos e you r regim e an d sleep well nights , too , because yo u ca n maintai n tha t i t wa s al l hi s fault." "So, right-winger s ar e tryin g t o increas e minorit y miser y t o th e point wher e w e react , t o th e poin t wher e violenc e break s out? " I asked incredulously . "Yes, lik e th e sixties . Onl y thi s time , i t wil l b e different . Th e rebellion wil l b e pu t down , lik e before . Bu t thi s time , instea d o f enacting sympathetic rules and laws to ameliorate black poverty and racial injustice , lik e th e Civi l Right s Ac t o f 1964 , th e countr y wil l put in place repressive measures increasing police surveillance, criminalizing sedition , an d providin g fo r martia l law . W e will the n sai l into th e nex t centur y secure . Whites' political an d economi c powe r

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will b e assure d b y a host o f ne w law s an d executiv e orders , a littl e like Sout h Africa . Th e ne w redisrictin g decisio n i s jus t th e firs t o f many measures that will prevent blacks from eve r obtaining political power. And gatherings, organizing , an d stree t marche s wil l b e ruth lessly put down . The U.S. will have a system o f apartheid, i n effect , with white s wieldin g powe r ove r a larg e bu t powerles s blac k an d brown population of laborers and domestics." "And th e ide a i s t o provok e thi s confrontatio n befor e i t i s to o late?" Rodrigo leaned forward, hi s expression serious. "Yes, i t woul d nee d t o b e don e fairl y soon , befor e powe r passe s peacefully," Kowalsk y replied . "That' s wh y yo u se e everythin g w e were talkin g abou t earlier—welfar e cutbacks , whic h ar e calculate d to increas e blacks ' misery . Voting-right s retrenchment . Withdrawa l of scholarships , whic h enable d futur e blac k leader s t o ge t a colleg e education. Attack s o n 'bi g government'—whic h i s see n a s a n em ployer an d defende r o f minorities . And , mos t o f all , eliminatio n o f affirmative action. " "I used t o thin k al l w e ha d t o d o was wait, " Rodrig o said , som berly. "Tha t demograph y would produce a peaceful chang e of power sooner or later. You've given me pause." "A great convulsion, in which whites decisively put dow n a black insurrection, would be exactly what's needed," Kowalsky said. "An d one doesn' t nee d t o resor t t o conspirac y theorie s t o understan d th e host o f anti-black an d anti-poor measures tha t ar e taking place right now. White s hav e simpl y decide d enoug h i s enough—it' s tim e t o take a stand . I f million s acros s th e country , an d conservativ e elite s at dozen s o f thin k tank s an d institute s hav e th e sam e sense—tha t it's ou r turn—an d ac t o n it, i t produce s th e sam e thing . Somethin g must be done, everyone agrees tacitly. And so the product is a coordinated campaign . It ma y have starte d alread y i n California , ou r mos t ethnically diverse state." 69 •"Laz," I burst in . " I used t o thin k leftist s wer e paranoid , alway s afraid tha t th e governmen t wa s spyin g o n thei r meetings , actin g i n league with bi g business, an d s o on. O f course , som e o f tha t turne d out t o be true. But this idea of yours goes further tha n anythin g I'v e heard. For one thing, our legal system and Constitution woul d never stand for it. We have the Bill of Rights, the Fourteenth Amendment. " "All of which ca n be overridden by a compelling state interest, a s

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you wel l know , Professor/ ' La z replie d levelly . "D o yo u hav e an y doubt tha t th e curren t Suprem e Cour t woul d find one if civi l unres t broke out in every city across the nation?" "Koiematsu coul d b e a precedent/' 70 Rodrig o pointe d out . "Th e Supreme Cour t coul d hol d tha t emergenc y measure s lik e curfews , surveillance, sweeps , an d eve n th e detentio n o f leader s o f colo r ar e justified. W e baite d th e Indian s a t Wounde d Kne e unti l the y re sponded. The n w e wipe d the m out. 71 Unfortunately , ther e i s mor e historical preceden t fo r Laz' s gri m scenari o tha n an y o f u s woul d like." "Our Latin o friend s woul d cit e th e zoo t sui t riot s i n th e 1940's , when America went throug h a wave of anti-immigrant, nativis t sen timent," 72 La z added . "Rovin g gang s o f Angl o sailor s starte d th e riots. Whe n th e Latino s i n Lo s Angeles an d othe r citie s responded , we threw them into jail, charging them with breaching the peace and provoking civi l disorder . Congress the n institute d Operatio n Wet back, i n whic h ten s o f thousand s o f Mexican-Americans , man y o f them lega l immigrant s o r eve n citizens , wer e rounde d u p an d de ported to Mexico." 73 "Most Republican s oppos e arm s control, " I pointe d out . "Som e even favor assault weapons, 74 even though there is absolutely no use for suc h weapons othe r tha n t o put dow n a civil insurrection." An d with a chill , I remembered : "An d Republican s i n thin k tank s an d everywhere favo r keepin g the militar y budge t high , eve n thoug h w e are at peace and have no major enemie s anywhere in the world. I still think it's crazy, but what other use can there be for all that hardwar e than t o prepar e fo r a n upcomin g domesti c wa r an d fortres s America?" "People o f colo r rarel y suppor t guns, " Rodrig o adde d quietly . "Right win g militias ar e virtually alway s all-white, s o assault weapons creat e firepower amon g th e whit e minority. 75 Eve n elit e group s are arming themselves , hiring security guards, and retreating behin d gates and walls. Right-wing fundamentalists hav e always had a morbid fascination wit h apocalypse. Formerly, they defined it in terms of H-bombs an d nuclea r Armageddon . The y preache d fea r o f commu nists, th e other main group that possessed these weapons. Now the y don't tal k in terms of H-bombs, but of race war." 76 "It seem s t o m e ver y possibl e tha t w e wil l hav e one, " Kowalsk y

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added. "The y kno w this , ar e prepared fo r tha t possibility , an d wan t to make sure that their group wins." "For th e firs t time , ther e i s a religious theor y fo r whit e suprem acy," Rodrig o interjected . "I t combine s wit h th e pseudoscientifi c one—I'm thinkin g of books like The Bell Curve—to produc e a mentality amon g white s tha t hold s tha t the y ar e entitle d t o remai n o n top, n o matte r wha t th e populatio n statistic s an d number s show . Consider al l th e interes t i n ou r ow n Civi l War , fo r example . On e network recently aired a series on the subject. 77 There are new books, including som e excellen t one s b y Shelb y Foote. 78 Wh y els e woul d there be such a revival of interest if people were not starting to think, at least on an unconscious level, that a new one is coming up?" I looked a t Rodrigo . "I n Sout h Africa , white s di d amas s weapon s in preparatio n fo r arme d resistance . An d fundamentalis t whit e churches ther e preache d tha t white s ha d a spiritua l imperativ e t o preserve thei r contro l ove r th e country . An d tha t serie s yo u men tioned, Rodrigo , i n severa l hour s o f installment s feature d mainl y white heroes . Ther e wa s onl y a littl e o n Frederic k Douglas s an d other blac k figures wh o oppose d slaver y an d argue d tha t th e Unio n should fight to end that scourge. " "Other recent books about the civil rights revolution d o the sam e thing," Rodrig o replied . "Jac k Greenberg' s book, 79 fo r example , em phasized the role of whites in controlling the course of the desegregation campaign . 'Loo k ho w muc h white s hav e sacrifice d fo r blacks / these books see m t o say . This way of presenting history legitimize s white ange r now. Blacks are depicted a s ingrates who don' t appreci ate al l tha t goo d whit e liberal s hav e don e fo r them . Thi s enable s liberals, an d th e Democrati c Party , t o loo k th e othe r way , o r eve n join in the mass reaction agains t black gains . During the period jus t before th e Civi l Wa r brok e out , th e Sout h drafte d loca l boy s an d armed them . That' s ho w the y go t a n army . Th e nea r futur e coul d witness the same thing." Kowalsky added: "We are seeing the beginnings of that now in th e militia movement. 80 Privat e groups ar e buying weapons, trainin g i n the woods , developin g thei r ow n ideolog y an d leadershi p structure . They keep in touch by E-mail and conventions. They interpret ever y move by blacks an d thei r supporter s a s anti-American , a s a n attac k on the m an d thei r values . That' s th e advantag e o f a n ideolog y tha t

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demonizes th e othe r side . I f yo u decid e a t th e outse t tha t X is a n enemy, you r enemy-creatio n wil l le t yo u interpre t X' s ever y actio n as justifying your visiting violence on him. That's the lesson of Chief Sitting Bull and Wounded Knee . It's also that o f Japanese internmen t and th e Korematsu case , whic h held , based o n th e slenderes t evi dence, tha t th e mer e existenc e o f Japanes e citizen s livin g peaceably on th e Wes t Coas t wa s a threat t o nationa l security. 81 Yo u tr y you r best t o provok e th e othe r sid e int o responding . Whe n the y don't , you simpl y declar e tha t milde r an d milde r action s o n thei r par t are provocations. Eventuall y thei r mer e existenc e i s an outrag e tha t cannot be ignored, as with the Japanese." "We've see n tha t historically, " I conceded . "Bu t d o yo u reall y think thi s coul d happe n today ? Laz , I thin k yo u ar e goin g to o far . Your theor y ma y be a useful interpretive approac h t o understandin g much o f what i s going on, all the goading and stiffening o f the spine. Many white s ar e uneasy an d spoilin g for a fight. As a psychological hypothesis t o explai n al l th e muscle-flexin g an d genera l ugliness — on tha t level , wha t yo u sa y make s muc h sense . Threatene d peopl e often loo k t o pick a fight, t o reestablis h who' s boss . But you surel y don't thin k we are preparing literally for a race war, do you?" "Only time will tell," Laz replied. "Th e FBI may have done something simila r i n th e Idah o standoff . Federa l official s provoke d th e family unti l the y reacte d an d the n sho t Rand y Weaver' s wife. 82 O f course, in that case the shoe was on the other foot. But conservative s learned the lesson all too well. As your Huey Newton onc e said, 'It' s not paranoi a i f the y reall y ar e ou t t o ge t you. ' Hat e crime s ar e in creasing. Incident s o f campu s racis m a s well. 83 Ever y majo r cit y reports Rodney King-type incidents in which white police beat black men t o death . On e jus t too k plac e i n Sa n Francisco. 84 And African American columnis t Car l Rowa n recentl y describe d ho w whit e racism operate s insid e man y politica l departments , includin g th e elit e federal Alcohol , Tobacco , an d Firearm s agency , whic h hel d a 'Goo d Ol' Boy s Roundup ' earlie r thi s yea r i n th e hill s o f Tennessee. 85 I t featured T-shirt s wit h Dr . Martin Luthe r King' s face behind a target and O. J. Simpson's in a noose. Another showe d white cops arresting a black, sprawle d acros s a police car, under the heading 'Boys on th e Hood.' A lawsuit bought by black agents featured evidenc e that AT F agents frequentl y use d th e wor d 'Nigger ' an d place d K u Klu x Kla n cards and other paraphernalia prominentl y i n their offices. I'm afrai d

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that my theory may come literally true, and at a broad national level. You mentioned earlie r th e hop e tha t ou r institutions—th e law , th e police—would serv e as a bulwark agains t white supremacist repres sion. I' m afrai d the y ma y prov e t o b e amon g th e mos t enthusiasti c supporters." The waite r arrive d offerin g coffe e refills . "No t fo r me, " I said . "Sobering a s thi s is , I need t o b e movin g alon g soon . An d you"— I looked at Laz—"don't you have a panel starting any minute now?" "It onl y take s a coupl e o f minute s t o wal k back, " Rodrig o said , looking at his watch. "Are you all ready for your talk, Laz?" When his friend nodded , Rodrig o went on . "T o summarize , then , it's not jus t wild-eyed patriots an d white supremacist s no w who ar e talking abou t holdin g th e line , savin g Americ a a s a whit e society , and resisting the change s tha t woul d otherwis e tak e place when th e numbers of blacks and browns exceed those of whites, as will happen soon. The crude r element s ar e arming, whil e conservativ e churche s are preachin g a retur n t o earl y values—thinl y veile d reference s t o race—thus layin g the theological basis for a race war. Conservative s across the board are taunting blacks and liberals, calling us balkanizers an d tribalist s an d barbarians . The y ar e dismantlin g affirmativ e action an d ethnic studie s programs o n campuses, while cuttin g programs o f critica l importanc e t o th e inne r cit y poor . Laz , yo u ma y have a point. It does look like a coordinated effor t t o prod blacks, t o provoke us into lashing back, so that mainstream society can respond with armed force." "Don't forge t tha t ther e wil l b e lega l an d constitutiona l chang e accompanying th e arme d put-down, " La z added . "Constitutiona l amendments an d new laws will assure that ther e cannot be a second uprising, ever . We have alread y see n th e start . Bill s authorizing th e building of new prisons and the hiring of new police officers, revivin g the death penalty, an d providing for mandatory sentence s for crime s associated wit h th e blac k underclas s ar e onl y a beginning . I hat e crime, as you know, and think thes e measures are not a bad idea. But they're aime d jus t a t you , whic h an y self-respectin g conservativ e should detest. English-only law s and ruthless immigration measure s make thing s har d fo r Chicano s an d othe r immigrant s o f color. 86 Congress is even considering abolishing U.S. citizenship for the children of undocumented immigrants. 87 One proposal would amend th e Fourteenth Amendment, fo r the first time in its history, to provide a

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narrower gran t o f citizenship. 88 Th e thinl y veile d purpos e o f th e amendment i s to keep America white." "Laz," I said. " I wonder i f you are familiar wit h th e new eugenic s movement, whic h advocate s control s o n breedin g fo r th e blac k un derclass. Ne w book s b y conservative s soun d th e alarm . Ou r bes t citizens, as they call them, have only a few children per family, whil e immigrant an d blac k population s hav e to o many , wit h th e resul t that ou r preciou s nationa l gen e poo l i s deteriorating. 89 Supposedly , we ar e losing several IQ points pe r generation. Th e ne w eugenicist s include Nobe l Priz e winner s lik e Willia m Shockley , prize-winnin g educational psychologis t Arthu r Jensen, 90 an d writer an d columnis t Ben Wattenberg , whos e Birth Dearth sol d wel l i n conservativ e cir cles." Kowalsky added, "An d someon e whose other ideas I respect, Joh n Tanton, i n a secret mem o writte n a few year s ago but onl y recentl y publicized, sounde d th e cr y fo r white s t o mobiliz e i n th e fac e o f engulfment b y what he saw as inferior races . I brought his 'Witan I V memo righ t here , just for you. He wrote: 'As Whites see their powe r and contro l ove r thei r live s declining , wil l the y simpl y g o quietl y into th e night ? Or , will ther e b e an explosion? ' He also asked, 'Wil l the presen t majorit y peaceabl y han d ove r it s politica l powe r t o a group tha t i s simpl y mor e fertile? 7 an d '[i] s advic e t o limi t one' s family simpl y advice to move over and let someone else with greate r reproductive power occupy th e space?' 91 Cordelia Scaife , a respected conservative philanthropist , wen t ove r th e edge , i n m y opinion , when sh e sponsore d a reprintin g o f Raspail' s novel , Camp of the Saints,92 whic h feature s Nort h Africa n horde s sweepin g ove r an d destroying civilization." 93 "That I didn't know, " I said. "Bu t I was readin g somewher e tha t early twentieth-centur y law s criminalize d abortion , i n par t becaus e doctors wanted to control midwifery, bu t also because late-Victoria n women wer e beginning to rebel against thei r role. They were having fewer babies, which alarmed male legislators. Today, something similar is taking place. Middle-class white men, and some women, wan t to take away the right to abortion. Black women are having too many babies, white women too few. The equation is changing." "And i n a way tha t threaten s whit e supremacy, " Rodrig o added . "There are very few black women in the right-to-life movement , an d surprisingly few Latinos."

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We were all silent fo r a moment. The n La z spoke up: "You see , I said I was a n equa l opportunit y critic . I suppor t muc h o f wha t m y fellow conservatives say and do, but not this. I felt I had an obligation to tel l th e tw o o f you . I stil l believ e i n neutra l principles , i n re warding hard work , an d in treatin g al l persons with simila r respect . Everyone i n ou r politica l syste m deserve s th e righ t t o b e treate d a s an individua l an d t o hav e hi s o r he r fundamenta l humanit y re spected. Bu t I' m alarme d a t som e o f th e step s m y fello w conserva tives ar e taking. There are better way s t o recall America t o its individualist root s tha n t o goa d alread y sufferin g populations , mire d i n slavery and Jim Crow laws until not so long ago, into what will prove to be a bloody and decisive defeat. " Rodrigo looked at hi s watch an d draine d his coffe e cup . "A s morbidly fascinating a s I find all this, I'm afrai d w e had better b e going. I'll just sign the check—it's o n the law school, by the way—you're a speaker, Laz , an d yo u a n honore d guest , Professor—an d w e shoul d head back." We walke d i n silenc e bac k t o th e la w school , broke n onl y b y my commenting abou t being glad Laz believed in equa l treatment — otherwise w e woul d no t hav e hear d hi s critiqu e o f hi s ow n move ment—and Rodrigo' s reques t tha t La z tr y t o rei n i n a certai n co panelist, wh o I gather wa s famous fo r longwindedness , s o a s not t o exceed th e tim e limits . ("W e migh t wan t t o sav e som e tim e t o dis cuss some of these broader issues," he said.) As luc k woul d hav e it , th e afternoon' s pane l turne d ou t t o b e technical, having to do with changes in the law of sexual harassment in th e workplace , an d a littl e outsid e m y field. I listene d a s bes t I could, bu t m y attentio n kep t returnin g t o ou r lunchtim e conversa tion and its interpretation o f events occurring on a wide spectrum of activities an d encompassin g a broa d rang e o f actors , organizations , and writers o n the Right. I recalled tha t ou r conversation ha d begun with a simple riddle : Why ar e th e conservative s tryin g t o ge t ri d of affirmative action , the goose that (fo r them) laid and reliably contin ues t o la y th e golde n egg ? I thought abou t ho w La z had draw n ou r attention first t o th e draconia n rollback s conservative s ar e advocat ing i n welfare—rollback s whic h g o fa r beyon d thos e necessar y t o save the budget o r provide th e poo r with a n incentiv e t o work . He , and Rodrigo too, pointed out the strange way in which conservative s manage t o exemp t thei r favorit e industries , th e military , an d high -

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income peopl e fro m cutbacks . I recalled Rodrigo' s lightnin g displa y of technologica l wizardry , whic h culminate d i n th e conclusio n tha t the rich are the main beneficiaries o f governmental largesse. I recalled how Kowalsky had the n offere d hi s chilling explanatio n for all this: namely, that conservative consciousness has now reached a taci t decision—no t s o much a conscious conspirac y a s the overal l effect o f a group mentality—to pus h black s an d th e poo r until the y respond. Thei r respons e woul d the n provid e th e justificatio n fo r harsh measure s an d perhap s a rac e war . Otherwise , ho w ca n on e explain, fo r example , th e conservativ e campaig n t o en d affirmativ e action, a program tha t unti l no w ha d provide d the m wit h benefits , both rhetorical and political? How else explain recent Supreme Court decisions reversing a legacy of Warren Court solicitude , o r measure s like California's Propositio n 187 , the upsurge in eugenics and similar proposals t o limit reproductio n o n the part o f poor blacks? And how else can one explain the advent o f militia groups and fundamentalis t religion callin g fo r a retur n t o an d defens e o f traditiona l values ? I reflected o n th e pictur e tha t emerged , lik e a photograp h emergin g from th e darkroo m tub , ove r th e cours e o f ou r conversation . I wondered i f societ y wa s reall y heade d towar d a conflagratio n aime d a t assuring that power does not change easily and peaceably as minority numbers begi n t o excee d thos e o f white s a fe w decade s fro m now . Was Kowalsky, th e brilliant youn g "equa l opportunit y trasher, " to o hard o n hi s fello w conservatives ? O r woul d elit e white s achiev e much th e sam e thin g b y stirrin g u p divisio n amon g outgroups , mi norities, an d Jews , so tha t th e nex t rac e war woul d b e between mi norities fightin g fo r th e scraps , muc h a s happene d i n Sout h Afric a before th e moment o f reckoning? I di d no t se e m y tw o youn g friend s muc h mor e tha t day . Afte r the afternoo n sessio n ended , bot h wer e engrosse d i n herdin g al l th e conference attendee s ove r t o th e dormitor y facilit y fo r a barbecue , then a n imprompt u sessio n i n on e o f th e lounge s o n "a n importan t matter tha t jus t cam e up." I wondered i f that matte r ha d t o d o with the substanc e o f ou r noontim e conversation , an d i f s o wha t th e other conferenc e participant s woul d mak e o f Laz' s an d Rodrigo' s hypothesis. I even wondered , i n passing , abou t Kowalsky' s motive s in spellin g ou t fo r u s ho w hi s fello w conservatives ' action s migh t produce a racial showdown. The brilliant young conservative seeme d genuinely sympatheti c to minority cause s and the poor. But why had

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he brough t th e new s t o u s an d t o th e conferenc e o f young , left leaning professor s o f color ? Wa s i t ou t o f concer n an d sportin g jus tice? Wit h a shudder, I realized tha t an y overreactio n o n ou r part — sounding th e alar m t o ou r communities , o r arming , fo r example — could at th e very least subjec t u s to withering criticism a s alarmist s and demagogues . I t coul d even , paradoxically , brin g abou t th e ver y repression against which Kowalsky warned. I arrived a t th e airpor t wit h m y head spinnin g and a tablet ful l o f notes. Whil e walkin g dow n th e nearl y deserte d concours e t o mee t my late-evenin g flight bac k home , I rouse d mysel f fro m th e intro spective daze I had been wrapped up in since getting into the shuttl e outside th e la w school , whic h Kowalsk y ha d bee n kin d enoug h t o call for me. There, in front o f my eyes, in a display behind the locked window o f a smal l concours e bookstore , I sa w fo r sal e The Turner Diaries, which deal s with a n upcoming race war, an d is authored by a right-wing novelist. I noted th e price, publisher, an d order numbe r posted on the display an d resolved t o buy an d read the book a s soon as I got home.

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Cosmopolitanism and Identity Politics

In Which Rodrigo and I Meet on the Inspection Team "Good timing/ ' I commente d t o Rodrig o a s w e waite d t o hai l a cab i n fron t o f th e airport . "I' m gla d we manage d t o coordinat e ou r arrivals." "Me, too," said my young friend. "Ho w was your flight?" "Fine. And yours?" "I barel y mad e it . La z ha d t o driv e m e t o th e airport . W e wer e talking, and I lost track of the time." "That was quite a conversation we had last time," I said. "Despit e his cheerful demeanor , La z knows how to spin a dark tale." l "That he does," Rodrigo agreed. "And the disturbances tha t brok e out i n California, an d the referenda bein g voted on right no w acros s the nation restricting immigration, welfare, an d citizenship al l show that Laz' s prediction is right on pace.2 Here's one." We gav e th e drive r th e address , an d a s h e starte d up , Rodrig o commented, "D o you realize thi s is one of the law schools I applied to for m y LL.M. just a few years ago? And here we are on the AALS site inspection team for their reaccreditation." 3 "I didn' t kno w that, " I said. "Bu t I' m gla d you woun d u p wher e you did . It le t u s ge t acquainted . Plus , you me t Giannin a tha t way , too, didn't you?" 130

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"I did. It worked out well all around. Just like our flights." "And this inspection team . I must confess , though , I accepted th e assignment only when they told me who was on the committee. I've served o n s o man y o f thes e it' s los t it s appeal . Bu t whe n I learne d you were o n thi s one , I changed m y mind . Eve r since you too k tha t job i n th e Midwest , w e se e eac h othe r al l to o infrequently . Look — that must be the court building." "District court, " th e cabbi e said . "That' s wher e the y trie d tha t serial killer last month. They had press coming in from everywhere. " After a shor t bu t enlightenin g exchang e wit h th e cabbie , wh o turned ou t t o b e an amateu r crim e buff, o n juro r selection , forensi c evidence, and the after-hours habit s an d tipping practices o f journalists compare d t o lawyers , Rodrig o turne d bac k t o m e an d said : " I agree. I t is al l to o infrequent . I kee p wishin g you' d ge t o n E-mail , Professor. You're one of only a few of my friends who isn't. It's really easy to learn and saves on the phone bill." I was about t o say something about ol d dogs and new tricks whe n the drive r asked : "Wil l yo u gentleme n b e needin g hel p wit h you r bags?" "Oh, we're here. That was fast! " We pai d th e driver , carrie d ou r bag s inside , an d fiftee n minute s later were sitting in the hotel's nearl y deserte d coffee sho p admirin g the view. "Quite a skyline, isn't it?" I asked. "It is. Reminds me a little of Milan's." "You are a cosmopolita n person, " I said. " I kee p forgettin g ho w well travele d yo u are . Whic h remind s me . I wa s abou t t o as k yo u something—if yo u have the time. Do you need to call Giannina?" "She ha s he r aerobic s clas s thi s evening . W e agree d I' d call" — Rodrigo looked a t his watch—"about a n hour fro m now . What's o n your mind?" "I was reading about a new critique of identity politics—what yo u and I would call civil rights. It's based on the idea of cosmopolitanis m and takes a number of forms. Since you are an extremely cosmopoli tan person, Rodrigo, I wondered what you would think of it." "Do yo u mea n th e ide a tha t focusin g o n one' s narro w ethni c o r national identit y i s dangerou s i n a nuclear world ? I know tha t ver sion. Martha Nussbaum and others have written that narrow nation alism is a luxury humanity ca n no longer afford. 4 Sh e favors univer -

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salism, no t surprisin g fro m a neo-Aristotelian . Tod d Gitli n ha s written in a similar vein." 5 "There is that version," I admitted. "Althoug h I was thinking of a different one . Jeremy Waldron, a well-known legal writer at Berkeley, came t o simila r conclusion s but o n differen t grounds . He wrote no t so much about th e nuclear threat a s the kind of costly squabbles and incessant demand s tha t g o on under the banner o f 'identit y politics / as he calls it. I have a copy of his article with me." 6 Rodrigo wa s silen t fo r a minute. "No , I don't thin k I'v e hear d of that version , althoug h F d love to. I do consider mysel f a cosmopolitan person. But I'm als o a racial activist, a s you know. I believe tha t society need s t o incorporat e outsiders , th e soone r th e better, 7 a s we've discussed before. " "That's why I thought you'd be intrigued by the critique. Waldron is th e principa l spokesperson , althoug h ther e ar e others. 8 Th e basi c idea i s tha t identit y politic s i s inconsisten t wit h cosmopolitanism . The cosmopolita n perso n i s on e wh o refuse s t o defin e himsel f o r herself i n term s o f a location , ancestry , o r eve n citizenshi p o r lan guage. Rather , h e o r sh e pick s an d choose s fro m a multitud e o f sources. He or she may eat Italian food one day, Indonesian the next, take his vacation in South America or Tibet. The cosmopolitan doe s not conside r hi s identit y compromise d whe n h e o r sh e learn s Japa nese o r Spanish , listen s t o aria s b y Verdi sun g b y a Maori princes s recorded on Japanese equipment, o r studies Buddhist meditatio n an d Japanese o r Korean managemen t techniques . Thi s person , accordin g to Waldron , 'i s a creatur e o f modernity , consciou s o f livin g i n a mixed-up world and having a mixed-up self.' " 9 "Sounds a littl e lik e me , al l right, " Rodrig o admitted , a littl e ruefully. "Excep t fo r th e par t abou t identit y politics . Ho w doe s h e derive that from th e cosmopolitan ideal?" "Two o r thre e ways, " I replied. "H e consider s intens e loyalt y t o one's narro w grou p dangerou s an d likel y t o lea d t o militanc y an d war.10 He also says it is costly, sinc e it entails rescue operations an d propping up dying cultures that demand subsidies and handouts fro m the mor e moder n one s tha t surroun d them. 11 Backwar d culture s want t o hav e i t bot h ways , h e argues . The y wan t t o b e allowe d t o survive, t o maintai n thei r primitiv e ways . Yet , tha t ver y surviva l needs financing b y th e mor e advance d societie s tha t hav e modern -

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ized an d joine d th e industria l worl d o f commerc e an d ideas . A n indigenous culture' s holdin g ont o it s time-honore d conditio n 'ma y be somethin g tha t particula r peopl e lik e an d enjoy . Bu t the y n o longer ca n clai m tha t i t i s somethin g tha t the y need / " 1 2 I read , looking down at the xeroxed article in my lap. "Is he the writer who compares ethnic politics to living in Disneyland? " Rodrigo asked. 13 "The very one/' I replied. "Laz was startin g t o tel l m e abou t him . Bu t the n somethin g happened an d we had to cu t shor t ou r conversation . H e was smiling , s o he may have been baiting me slightly. So, it's the same writer." "I'm sur e i t is . He writes tha t preservin g smal l backward groups , like pygmie s livin g i n rai n forest s o r nationalis t America n black s who want to live in the black community and go to all-black schools, is as artificial a s a Walt Disney them e park. For Waldron, th e disap pearance o f suc h a n identit y grou p i s n o grea t loss . 'I t i s lik e th e death of a fashion o r a hobby, not the demise of anything that people really need/ " I read.14 "But on e o f th e tenet s o f nationalism , a t leas t o f th e African American variety , i s no t t o b e dependen t o n white s bu t t o develo p one's own resources and institutions, like banks, schools, and political organizations," Rodrigo replied. 15 "I doub t tha t woul d sto p Waldro n an d hi s friends . Th e 'Cosm o Boys/ a s I call them , believe tha t an y degree of separatis m i s practically impossibl e t o maintai n i n today' s world, 16 an d almos t whgll y undesirable even if you could do it." "I suppos e an y ethni c communit y woul d nee d polic e force s an d the implici t promis e o n th e par t o f othe r group s no t t o attac k it, " Rodrigo conceded. "It would also have to have streets, highways, and air traffi c crossin g it , telephon e wires , an d s o on . T o tha t exten t i t would require peaceable interaction with the outside world." "That's no t all, " I added . "Commerc e i s no w globalized , a s i s communication. 'Moder n persons/ according to Waldron 'have intercourse i n ever y direction.' 17 W e rea d an d ar e shaped b y th e sam e books, th e sam e newspapers, th e sam e influences. Pollutio n crosse s boundaries. A floo d o r famin e i n on e par t o f th e worl d affect s an other. Depletio n o f a resourc e i n Brazi l change s twent y industrie s in th e Unite d States , Germany , an d Korea . Th e problem s o f th e

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world toda y are not thos e o f a Zulu villager , o r even a race reforme r like yourself i n the Midwest.18 Liberals should recognize these things and sto p devotin g s o much energ y t o th e narro w agenda s an d parochial concern s o f loca l group s tha t are , i n an y event , boun d fo r oblivion." "Bound for oblivion? Those other things may indeed be happening, but why oblivion?" "Because th e moder n citize n i s inevitabl y cosmopolitan . Banker s in The Hague and in New York or Buenos Aires today live much th e same life—driv e th e sam e cars , rea d th e sam e reports , sen d thei r children to the same type of school. 19 Maintaining one's own distinct culture toda y ma y b e a 'fascinatin g anthropologica l experiment,' 20 but i t require s 'a n artificia l dislocatio n fro m wha t i s actuall y goin g on in the world.' 21 It can be preserved only by artifice an d subsidy. It is inauthentic an d contrived . A digression fro m wha t i s really goin g on. Those ar e Waldron's words , not mine , but d o they not contai n a grain of truth?" "I thin k I' m beginnin g t o understand, " Rodrig o replied . "Indian s demanding protection of their lands, women and children demandin g respectful treatment , an d cultures insisting on protection o f their sacred ground s al l ough t t o b e evaluate d fro m th e perspectiv e o f ho w these demands would be seen by a cosmopolitan member of the larger society. If to him or her, the demands seem unreasonable, costly, and artificial, the y should be rejected. This is an interesting critique, Professor. Now I can see why you wanted to tell me about it." "And do you not think it has some force?" I repeated. "I'm no t s o sure. It's a variant o f the neutral-principles attac k w e were talkin g abou t las t time. 22 I t declare s on e perspective—tha t o f the cosmopolitan, big-city citizen of the world—the baseline. It the n pronounces th e smal l group' s deman d a reques t fo r specia l treat ment." "Even i f i t consist s merel y o f th e deman d t o b e allowe d t o con tinue t o exist, " I observed . "Th e specia l an d th e ordinar y trad e places." "Exactly. W e coul d jus t a s wel l proclai m th e mod e o f lif e o f a n Indian community—self-sufficient , no t botherin g anyone , livin g i n peace with th e land—the baseline . Then, the behavior of a polluting industrialist woul d be seen as a demand for special treatment. "

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"Inauthentic, expensive , an d a luxury we cannot afford/ ' I added. "One can turn the critique around. " "It smuggles in a value premise," Rodrigo said. "Lif e is becomin g a certai n way . Therefore, group s tha t wis h t o preserv e anothe r wa y are acting unreasonably." "Just th e wa y worldl y people , educate d a t th e bes t universities , disdain theme parks like Disneyland." Rodrigo was silent for a moment, then added: "Or at any rate don't think the y shoul d receiv e stat e money . Bu t th e troublesom e thin g about thi s ne w critiqu e i s that i t come s fro m internationa l la w an d cross-national studies , a n are a o f la w tha t outside r group s ha d thought was friendly t o our concerns." "It ha s bee n unti l now . Th e U.N . ha s bee n holdin g hearing s o n Indian claims, taking testimony from group s throughout th e world. 23 Several internationa l resolution s an d treatie s no w protec t nativ e groups fro m thef t o f thei r land s an d cultura l patrimony. 24 Membe r nations ar e required t o protec t nativ e group s fro m extinction , fro m forced relocations , an d fro m an y governmenta l actio n tha t woul d endanger their language, religion, or customs." 25 Rodrigo sighed . "I' m afrai d it' s a n instanc e o f wha t w e wer e discussing befor e wit h U.S . civil right s law . Whe n th e self-interes t o f powerful group s dictate s tha t a rai n fores t b e raze d o r a n India n reservation relocate d s o tha t th e land s ca n b e mine d o r use d fo r development, ne w meaning s ar e read int o law s t o enabl e th e domi nant grou p t o accomplis h wha t i t needs . Neutra l principle s neve r work fo r us , especiall y i n th e fac e o f a determine d effor t b y th e empowered group . Redres s fo r black s wa s fine, unti l i t bega n t o impinge o n th e prerogatives o f elit e whites. Then a new principle — no revers e discrimination , o r color-blindness—clicke d in. 26 It' s no t so surprising, then , tha t internationa l la w is turning out to work th e same way." "So cosmopolitanis m i s th e limitin g principl e i n internationa l law?" "It's one . I would not b e surprised i f mor e were in store . And th e sad thing is that th e cosm o boys, as you cal l them, cit e som e of m y heroes." Rodrig o picke d u p th e articl e whic h h e ha d bee n eyeing . "Tagore, Salma n Rushdie. 27 Thos e were , indeed , brav e writer s an d men o f th e world. The y wer e abov e petty factionalism . Rushdi e go t

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into seriou s troubl e wit h hi s ow n religion , a s yo u know , whe n h e wrote a book tha t som e Muslim s considere d sacrilegious. 28 Neithe r of them was against his group, however. Neither labeled his people a Disneyland. Rather, they identified wit h all of humanity. " "There's a big difference," I agreed. "But the critique of particularity an d identit y politic s ha s a secon d strand . Ar e yo u familia r wit h John Merryman's position on cultural artifacts? "

In Which Rodrigo and I Discuss Aztec Calendars and Cultural Patrimony "I am, " Rodrig o replied . "An d i n som e way s i t i s lik e Waldron' s critique, althoug h perhap s no t s o disparaging . I assum e yo u ar e thinking of his famous 'Elgi n marbles' article?" 29 "That an d others," I replied. "Then w e ar e thinkin g o f th e sam e thing . Merryman , a well regarded exper t o n comparativ e an d internationa l law , i s als o th e author o f a proposal tha t woul d dives t cultura l propert y o f muc h of its current protection. " "I hop e w e understan d th e sam e thin g b y cultura l property, " I said. "As I understand it, " Rodrig o explained, "i t i s anything of archeological, historical , artistic , o r ethnologica l importanc e goin g beyon d the functional, monetar y value of the thing. 30 For example, an Aztec calendar may be worth $20,000, but a desk calendar from a stationery store onl y $2.00 . Cultura l propert y i s essentia l t o th e self-under standing o f a peopl e o r group . Withou t it , th e peopl e woul d b e bereft.31 A n Aztec calendar is such a n example. A 199 4 Porsche is not. A Renoir painting probably is not." "And you'v e rea d abou t th e internationalis t critiqu e o f cultura l property?" "Yes," Rodrigo replied. "An d it seems to me closely related to th e cosmopolitanism one . Recently , nativ e group s hav e bee n assertin g themselves agains t museu m curator s an d collector s tha t hav e bee n coming t o thei r countrie s i n searc h o f artifacts . The y hav e bee n asking authoritie s t o enac t law s agains t thi s typ e o f trade. 32 And , they've succeede d i n gettin g th e U.N . t o enac t a treat y providin g a degree o f protection. 33 America n Indian s hav e bee n askin g fo r th e

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return o f sacre d object s no w i n museums . Collector s an d museu m curators hate the whole idea." "So does Professor Merryman , who holds that it stands in the way of a cosmopolitan , internationalis t spirit , no t t o mentio n th e fre e market." 34 "I rea d hi s article, " Rodrig o interjected . "H e use s a s a n exampl e the Elgin marbles from th e Greek Parthenon, but now residing in th e British Museum. He argues tha t the y ar e of value and interest t o al l of humanity. The y ca n be seen an d appreciate d b y anyone. So , why should the Greeks have a unique claim to them—assuming a willing buyer ready to donate them to the British Museum?" 35 "I believ e h e als o ha s a law-and-economic s argument , doe s h e not?" I asked. "He does, " Rodrigo replied. "H e reason s tha t i f a buyer o f India n relics, say, or the Elgin marbles, is willing to pay more for them tha n a Gree k citize n o r an Indian o n a reservation, i t mus t b e because h e or she values the m mor e an d is therefore a more appropriate owner . Of course , hi s argumen t overlook s tha t th e India n natio n ma y b e deeply attache d t o th e object—whic h ma y have a unique rol e in it s religion—but b e unabl e t o matc h th e wealth y collector' s offer . I t also overlook s tha t whit e societ y ma y hav e ha d a direc t rol e i n producing that state of affairs. " "I agree," I said. "An d i t als o overlook s tha t th e objec t ma y los e much of its meaning when taken out of its original setting. An Indian fetish ma y serv e a religiou s purpos e whe n kep t i n a hogan . Whe n displayed in a cabinet i n th e study of an Anglo collector, i t become s a mer e curiosity . Before , i t wa s a part o f livin g culture ; no w i t i s a dead museum piece." "Nevertheless, Merryma n i s an important player . And , o f course , the museu m lobb y an d th e wealth y collector s lov e wha t h e i s saying." The waiter materialized t o ask if we cared to order dinner. "The y fed us on the plane," I said. "How about you?" "The usua l inedibl e in-fligh t snack . I coul d us e a bite , i f yo u could," m y lank y frien d said . Th e waite r brough t tw o menu s an d disappeared. "So," I summarized, "yo u thin k tha t th e cosmopolitan ideal' s appearance at this time in history on two fronts—identity politic s an d cultural property—i s n o coincidence . Clamorou s indigenou s group s

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now beginning to assert themselves are getting in the way of business as usual. The outsiders were just starting to get somewhere, finding a body of law that seemed responsive to their needs. So, just as happened in the U.S., we see the hook, the backlash. Writers find a countervailing principle to limit the gains minorities hope to achieve." "And," Rodrig o added , "notic e a furthe r paralle l wit h U.S . civi l rights, where conservatives marshal ringing declarations about equality o f opportunity, th e sanctity o f the individual ove r the group, and the odiousnes s o f race-base d treatment . I n th e case s w e hav e bee n talking abou t today , gran d principle s com e int o pla y a s well . Th e cosmopolitans tal k abou t transcendin g parochialis m an d self-inter est, and about the unity of all mankind. They warn about the dangers of petty nationalism, abou t the superstition tha t fueled th e attack on Salman Rushdie . They conjur e u p picture s o f religiou s rivalrie s an d village strife. " "It's very neat," I added. " A small, beleaguered grou p goes, hat i n hand, t o internationa l authorities . It invoke s principles suc h a s selfdetermination an d protection o f linguistic and cultural minorities. It has hig h hopes . Bu t then , thei r adversarie s pul l ou t a principl e o f their own . This principle cancel s ou t th e on e the smal l group based their clai m on , denie s i t an y mora l hig h ground . Thei r concern s ar e depicted a s petty an d small , thei r wishe s selfis h an d uneconomical . The race reformer—defender o f indigenous rights—comes ou t look ing like a petty tyrant. " "And th e intriguin g thin g i s tha t th e critiqu e i s als o addressed t o liberals, no t jus t fello w conservatives . I t tell s the m it' s al l righ t t o oppose identit y politic s an d civi l rights , thing s tha t alread y mak e some o f the m uneasy . It gives the m a principle the y ca n latch onto , namely cosmopolitanism . Wh o coul d b e agains t that ? Everyon e believes it' s goo d t o embrac e othe r cultures , languages , customs , an d cuisines, to be tolerant an d eclectic rather than narrow and nationalistic. It' s th e perfec t banne r unde r whic h t o launc h a counterattac k on rowdy, raucous identity politics." "One ca n invok e i t t o browbea t insurgen t groups , oppresse d fo r ages but no w beginnin g t o asser t themselves , int o silence . On e ca n scold the m fo r no t bein g modern. On e ca n tel l the m t o get with th e program, modernize , cas t of f thei r pett y loca l concern s an d sto p bothering u s with demand s fo r protectio n an d respect. Be like us. If

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they refuse, w e cal l the m parochial . We tell the m the y want t o liv e in Disneyland. " "If th e critiqu e ha s it s way/ ' Rodrig o said , "Indian s insistin g o n the retur n o f plundere d sacre d object s an d minorit y group s de manding protectio n o f ritual s an d practice s woul d al l b e evaluate d according t o ho w thes e demand s woul d b e see n b y a cosmopolitan , well-traveled ma n o r woman o f th e world. 36 I f t o suc h a member of the larger culture these demands seem petty, frivolous, troublesome , or backward, the larger society would be justified i n rejecting them. " "I think yo u hav e put i t fairly, " I said, pointin g t o th e essay . "I n fact, i n the final pages , Waldron say s not onl y that th e major power s are justified i n rejecting suc h demands . He implies tha t i t woul d b e immoral fo r the m t o giv e in . Fa r fro m bein g 'coz y an d attractive, ' group allegiance s toda y ar e a s ap t t o buil d o n 'ancien t hatred s o f one's neighbors as immemorial tradition s of culture.' " 3 7 "He translate s th e cr y fo r relie f int o a n expressio n o f tribalism , equates respec t fo r a n ancien t cultur e wit h abettin g balkanizatio n and bloody wars. He portrays a small group asking for relief s o that i t does no t di e out , a s th e aggressor , th e on e placin g unreasonabl e demands on larger society. Group harms become practically incoher ent, a cas e o f insistenc e o n a preservationist, sentimenta l program . So, we get to turn them down and to feel just at the same time." "I'm reminded again of the analogy to U.S. civil rights law," I said. "And o f thos e conservative s wh o insis t tha t affirmativ e actio n an d other provision s tha t benefi t minoritie s ar e revers e discrimination . Whites must be treated the same as blacks. A measure that disadvan tages a whit e i s jus t a s ba d a s on e tha t disadvantage s blacks . O f course, affirmative actio n i s designed t o redress three-plu s centurie s of slaver y an d Ji m Cro w laws , somethin g white s neve r ha d t o face . Neutral, color-blind jurisprudence obscures all that, and merely ask s what i s happenin g righ t now , a t thi s poin t i n history . An d i f th e answer i s tha t a white , somewhere , i s bein g disadvantaged , well , that's unconstitutional discrimination. " "So, lik e neutra l principle s i n civi l right s law , cosmopolitanis m points us only to a narrow range of considerations—namely, wha t i s happening a t thi s moment . Th e uniquenes s o f th e group' s histor y and cultur e i s lost . I t i s lik e a freeze-frame : yo u ge t t o se e onl y the grou p a s i t exist s today , makin g thi s absur d an d economicall y

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inefficient demand . Yo u ca n easil y think , a s Waldron did , tha t i t i s white, mainstream societ y that is being imposed upon. " "But whe n yo u loo k a t th e group' s history, " I said , " a differen t story emerges . You begin t o se e why the y plac e such a premium o n their language, religion, or way of living on the land. " "You certainl y do, " Rodrig o agreed . "I n man y cases , thes e ar e people whos e wa y o f lif e wa s almos t destroye d b y colonizin g na tions—the ver y one s the y no w appea l t o fo r relief . O f cours e th e colonial power does not want to look into the past, for there it would find, prominentl y displayed , it s ow n iniquity . Tha t i s wh y i t love s neutral principle s an d ahistori c approache s lik e th e cosmopolita n ideal. Neutra l principle s canno t easil y captur e an d dea l wit h asym metric events, like A harmed B. In fact, that' s their charm. " The waite r stoppe d b y ou r table . "Ar e yo u gentleme n read y t o order?" Neither o f us had looked at the menu. "Ho w about a hamburger?" Rodrigo suggested. "The consummate cosmopolita n meal, " I said. "You go ahead. I'l l just have a refill," I told the waiter, pointing to my glass. The waite r disappeare d wit h ou r orders and Rodrigo continued a s follows:

In Which Rodrigo and I Develop Answers to the Cosmo Boys "How, then , shal l we reply to the cosmopolitans an d those attracte d to their message?" "There's n o eas y reply, " I answered . "Toleranc e an d cosmopoli tanism are valid ideals. They can serve as a brake on narrow nationalism an d self-interest . The y ca n enlarg e ou r view , mak e u s thin k about th e consequence s o f ou r action s fo r th e large r community . They can make this a safer world. " "Not t o mentio n tha t cosmopolitanis m i s fun. It' s grea t t o enjo y Middle Easter n foo d an d rea d Lati n America n magica l realism . I' m stuck i n the Midwest, but Giannin a an d I manage as cosmopolitan a life a s possible. In fact, we'r e hopin g to go on vacation togethe r t o a small islan d of f th e coas t o f Chil e t o mee t a colon y o f Mennonite s who move d dow n ther e las t century . It' s th e use th e cosm o boy s

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make of their principle, namely to put dow n nationalist an d cultura l claims, that we both find troubling." Rodrigo gestured almos t imperceptibly i n the directio n o f a handsome couple, the man wearing a turban, th e woman a sari, speakin g to each other softly in Oxford-tinged English . We were both silent for a moment . Then , I spoke up : " I agree, th e us e is wrong. But what' s the answer?" Rodrigo leane d forwar d i n hi s booth . " I thin k th e answe r mus t take a form tha t the cosmopolitan will identify wit h and understand. We must appeal to cosmopolitan self-interest. " "How?" "One possibility, " Rodrig o said , "i s t o poin t ou t tha t cosmopoli tanism an d it s opposite , parochialism , exis t i n dynami c tension . They both threate n an d reinforce eac h other. The cosmopolita n per son need s th e breadt h o f experienc e an d opportunities , th e broad palette, tha t onl y respec t fo r nativ e claim s make s possible . To tak e Waldron's exampl e of the oper a singer, if colonia l societ y had wipe d out, o r reeducated, Maor i culture, Waldron coul d not enjo y th e aria s he favors today. Cosmopolitan individuals not only like to visit European capitals, many of them enjo y going on safari in the Serengeti or trekking i n Nepal . The y enjo y stayin g a t a n Amis h settlemen t o n vacation, eating Indian food, and reading their children fables writte n by Sout h America n writers . Ho w coul d the y enjo y thes e thing s i f their very sources were wiped out?" "So yo u ar e saying, " I summarized , "tha t cosmopolitanis m re quires a degree o f it s opposite . Otherwis e th e worl d become s blan d as the major capital s increasingly spor t th e sam e hotel chains, serv e the sam e food , music , an d entertainment . Cosmopolitanis m b y it s own terms requires at least some of the exotic." "A bi t o f Disneyland , a s Waldro n pu t it, " Rodrig o added . "Bu t there are other reasons for resisting it as well." "Such as?" I asked. "Driving ou t olde r culture s ma y depriv e th e so-calle d advance d ones of a source of information the y vitally need—not jus t t o piqu e a jaded taste—but fo r their very survival. We were talking about thi s before, Professor." 38 "The first time we met?" "I believe so . Answers t o question s no w troublin g th e industrial ized West may lie in the repertory of non-Western nations or groups.

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Old age care is a serious problem in the U.S., yet other societie s do a better job of it tha n we. The American Indians' ideas about lan d and wildlife ma y provid e ne w way s o f lookin g a t ou r environmenta l crisis. Japanese managemen t an d personne l practice s strik e a bette r balance betwee n efficienc y an d humanitarianis m tha n ou r own . Other societie s d o a better jo b o f providin g chil d car e tha n w e do . And s o on. If we driv e ou t thes e culture s o r force the m t o conform , secrets needed for our own survival may be lost." 39 "Those ar e valid self-interest-base d reason s fo r resistin g an y program tha t woul d le t minorit y an d indigenou s culture s di e out , an d cultural patrimon y b e bought u p b y th e collecto r wit h th e fancies t price tag . But ar e there an y reason s o f principle! I mean, othe r tha n where the critique leads you?" "There are, " Rodrig o replied . " I jotte d som e dow n a s yo u wer e talking. Cosmopolitanis m ma y b e fin e a s a persona l principl e o r guide to life. But it fails a s a principle of politics. Waldron's use of it is reductionist, i n othe r words . As a theory o f educatio n o r personal development, it' s fine , eve n exemplary . We want th e young to grow up appreciatin g differen t cultures , languages , an d cuisines . So , fo r purposes o f raisin g children , designin g a curriculum, choosin g text books, hirin g teachers , an d s o on , i t i s certainl y on e valu e amon g others that we ought to promote." "But it doesn't work for politics, you say?" "No. Cosmopolitanis m canno t tak e accoun t o f injustic e an d th e need fo r reparations . It canno t tel l us why a culture migh t b e sensitive abou t protectin g it s language , religion , marriag e ceremonies , o r sacred relics. It is too present oriented , to o caught u p in th e individ ual. It cannot tel l you what harms need redressing. It cannot tel l you anything abou t th e redistributio n o f social good s an d influence . I t has n o theor y o f inequality . I t offer s a t bes t wea k protectio n fo r oppressed groups." "A thought-provoking argument, Rodrigo. But you said there were others." "A secon d i s tha t cosmopolitanis m offer s a weak bond . Histori cally, th e wors t excesse s ste m fro m th e universalizin g urge—on e thinks o f Christianity , Maoism , Leninism—whil e th e mos t impres sive rescu e operation s i n history , fo r exampl e tha t o f te n millio n Russian Jew s by th e natio n o f Israel , o r Wes t Germany' s bailou t o f

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seventeen millio n bankrup t neighbors , ste m fro m nationalis m an d the idea of kinship." 40 "I believe w e wer e gettin g a t somethin g simila r befor e whe n w e pointed out that cosmopolitanism is a thin, weak spring for action. It is almost entirely abstract. It points the reader toward a neo-Aristotelian ideal , namel y o f th e universa l ma n o r woman . I t i s lik e a Pla tonic form, what every person has in common. Regional and personal differences ar e erased . Perhap s tha t account s fo r wh y Marth a Nuss baum is so attracted to it. " "She's a neo-Aristotelian, " Rodrig o replied . "An d I' m sur e you r next question is going to be, What's wrong with that? On e problem I see i s tha t th e universa l person—th e cosmopolita n citize n o f th e world—is ap t t o b e white , male , Western , an d a membe r o f th e educated elite." "That's a criticism som e have made of Aristotle's politics, as well as of the neorepublican revival," 41 1 pointed out . "Aristotl e believe d in politic s b y deliberation . Bu t i t turn s ou t tha t th e participant s he ha d i n min d fo r hi s town-hal l syste m o f politic s wer e Athens' s aristocracy of landed white elderly men." 42 "And yo u an d other s hav e pointe d out, " Rodrig o added , "tha t neorepublicanism, whic h emphasize s dialogic deliberation abou t th e common good , lend s itsel f t o dominatio n b y a well-educate d elit e with little place for outsiders. 43 But cosmopolitanism als o lacks life . It lack s blood. Althoug h i t ha s a superficial appeal— I mean , every one likes the idea of spicy, exotic cuisine and attractive ethni c blankets, masks , an d artifacts—what wil l sustain an d give richness an d depth to the cosmopolitan life? What holidays will the cosmopolita n celebrate? Wha t nationa l birthdays ? Someon e wh o draw s fro m al l cultures, pick s an d choose s fro m amon g many , wil l lac k stron g at tachment t o any particular one." M "I agree," I said. "I' m glad you are cosmopolitan. Your broad edu cation, you r wide travels an d experience , have brought lif e an d ne w perspectives t o our discussions. But you seem to have a strong sense of wh o yo u are . You ar e a n Africa n American , a radical, an d a rac e reformer. Yo u have a well-developed identity . Yo u dra w from othe r sources, bodies of literature, and cultures, without losin g touch wit h your social and political commitments. "

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In Which Rodrigo Accuses the Cosmo Boys of a Category Mistake and Also with Suspicious Timing Rodrigo wave d of f m y flattery. " I thin k th e bes t tha t ca n b e said , Professor, i s tha t cosmopolitanis m i s on e o f thos e principle s tha t works wel l i n goo d time s an d whe n n o structura l inequalit y o r historic injustic e i s present. I n tha t respec t i t i s like th e conservatives ' color-blind principle. There is nothing wrong with being color blind, so long as it i s not you r onl y principle, you r onl y approac h t o racia l justice. I t work s wel l onl y i n settings—suc h a s discussio n amon g equals—where ther e is no need to take account of race or redress the past." "So, on e ca n perhap s sa y this/ ' I summarized. "On e shoul d b e a cosmopolitan i n one' s persona l life—a t leas t t o th e exten t on e ca n without neuterin g oneself . On e shoul d embrac e toleranc e an d a broad outloo k whe n i t come s t o educatio n an d th e raisin g o f th e young. But in politics on e cannot rel y on it alone . In particular, i t i s a serious mistake, eve n in cosmopolitan terms , to invoke the principle t o tur n a dea f ea r t o small , historicall y oppresse d group s cryin g for relief." "In other words, lead your personal life like a Salman Rushdie or a Tagore. Bu t i n politics , hee d th e messag e o f Marti n Luthe r King , Cesar Chavez, Benazir Bhutto, or Malcolm X." "Agreed," Rodrig o replied . "W e shoul d alway s choos e principle s that will reduce inequality, not deepen it. " "In fact , I was jus t thinkin g abou t thi s befor e yo u spoke . Do yo u think ther e i s somethin g od d abou t th e timin g o f th e cosmopolita n counterattack o n nationalist politics? " "I do. Many formerl y backwar d countrie s tha t suffere d unde r th e yoke o f colonia l oppressio n ar e beginnin g t o emerg e fro m it . Man y are beginning t o develop . They hav e th e beginning s o f industry , ar e starting to contribute to pollution and the international environmen tal crisis . Thei r population s ar e booming , an d th e dislocation s o f the labo r marke t tha t accompan y rapi d developmen t ar e causin g a migration—both lega l an d illegal—o f man y o f thei r citizen s t o th e more develope d countries . If developin g countrie s ca n b e persuade d to adop t internationa l standard s o f environmenta l protection , one s laid dow n b y th e larg e powers , thi s wil l slo w thei r developmen t

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somewhat bu t als o hel p eas e th e globa l pollutio n problem , some thing th e advance d countrie s ver y muc h wan t t o happen. Th e sam e is tru e o f immigration . Th e develope d countrie s wan t t o ge t th e others t o abide b y immigratio n law s unde r whic h th e poore r coun tries wil l sen d onl y engineers , doctors , scientists , an d othe r highl y trained an d employabl e people . Thi s wil l o f cours e caus e a brai n drain, but will greatly help the more advanced countries." 45 "Your theor y ma y hav e somethin g t o it, " I said . "Developin g societies, lik e minorit y group s o f colo r i n th e U.S. , need protectio n first, an d th e opportunit y t o assimilate— mongrelize, a s Salma n Rushdie put s it—later. 46 I f th e worl d communit y doe s no t affor d them th e chanc e t o d o this , cosmopolitanis m wil l injur e them , se t back thei r development , whil e i t aid s th e caus e o f th e mos t privi leged." "In counter-Rawlesian fashion, " Rodrig o interjected . "My poin t exactly . Bu t wha t abou t th e balkanizatio n problem , Rodrigo? I s tha t no t a seriou s concern ? Certainl y th e worl d need s less feuding, fewe r ol d scores getting settled by blood and fire. Is not cosmopolitanism a brake against that, at least?"

In Which Rodrigo Rephrases the Balkanization Problem and Issues a Warning for Progressive People 'Tm no t so sure," Rodrigo demurred. "Balkanizatio n properly understood refers t o small countries squabblin g senselessly ove r old grievances, settling scores that really should not matter. It does not com e into play when a small country wants t o assert its independence, it s cultural uniqueness , agains t on e o f th e majo r powers . Tha t i s no t balkanization bu t nationa l self-determination . Fro m th e perspectiv e of th e highl y educate d academic , lik e Waldron , Merryman , Tagore , or Rushdie, nationalist politics and identity activism may appear th e opposite o f th e serene , worldl y vie w the y lik e an d prefer . Bu t poo r nations an d oppresse d group s nee d protection , nee d self-identity , first. The y nee d t o cur e thei r historie s o f smashe d cultures , stole n lands, plundered patrimony, and damaged self-esteem. Onl y then can they begin thinking of entering the world community o n equal terms and becoming cosmopolitan. "

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"And d o you se e a moral i n al l this , Rodrigo , for progressiv e people? I mean , beside s watchin g ou t fo r th e cosmopolita n wol f i n sheep's clothing? ,/ "I do," Rodrigo replied. "It is that ther e is no safe haven, in law or anywhere else. We began by discussing the way disadvantaged groups and minorities hav e been turning , eve r hopeful, t o international la w in a n effor t t o redres s grievance s tha t ar e not easil y tackle d locally . African American s invoke the genocide convention in hopes of stopping th e hig h arrest , incarceration , an d executio n rat e o f African American men . Antihat e speec h an d antipornograph y activist s in voke several conventions in hopes of getting nations to toughen their stance agains t assaultiv e speec h an d incitemen t t o hatred . And , o f course, indigenou s group s o n severa l continent s hav e bee n takin g their case s t o th e U.N . i n hope s o f protectin g land , patrimony , an d culture. Bu t a s soon a s this happens , th e countermov e materializes . Law generate s a counterprinciple—cosmopolitanism—tha t cancel s out th e ringin g human-right s provisio n th e smal l group i s in voking." 47 "An old story." "So there turn s ou t t o be no structure o f thought , n o law or body of doctrin e tha t wil l serv e a s a magic wand, causin g one' s problem s to roll away. There is no banner—not eve n antidiscrimination law — that canno t b e flipped, turne d agains t one . Ther e i s n o suc h magi c principle. But that is not to say, Professor, tha t ther e are no universal truths." Rodrigo was silent fo r a moment. S o I asked, "D o you have a few in mind?" "Pain is feared everywhere. All people desire preservation and selfrespect. Everyone needs a kindred group and culture. Disneylands are tawdry an d bad , bu t no t jus t fo r th e reaso n Waldro n mentioned . They contai n demeanin g symbol s an d stereotypes , o f whic h thei r managers ar e blissfully unawar e unti l calle d t o thei r attention . Th e cosmopolitan idea l i s usefu l onl y whe n i t concede s thes e things , acknowledges its own limitations, and its backers refrain fro m usin g it, a s a principle o f politics, to suppres s thos e who are already lowl y and seek only respect, security, and dignity." I wa s abou t t o pi n Rodrig o down , somewha t halfheartedly , o n hi s surprising embrace of these universalisms. I would have commented ,

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as I had don e before, o n how he seeme d t o a have a spiritual—or a t least a universalist—side, afte r all . But any further conversatio n wa s made impossible by the arrival of the bustling, efficien t chai r o f ou r inspection committee. ("Oh, ther e you are. I've been looking for you. I left message s o h your roo m phones bu t I' m gla d I found you . Ca n we talk?" ) I heard, wit h a sigh , tha t I was t o b e responsibl e fo r th e library inspectio n tomorro w morning , startin g wit h a meeting wit h the entir e staf f a t 8:30 . Rodrig o was assigne d th e plu m jo b of inter viewing th e junio r faculty . Th e chai r gav e u s eac h a two-hundred page packet in a three-ring binder ("These ar e supplementary memo randa the school filed jus t last week. Try to read them by tomorrow , if you can"). "Well, that was fun whil e it lasted," Rodrig o remarked a s we said goodnight t o th e chairperson . H e bolte d th e las t o f hi s hamburger , and w e stoo d u p an d heade d ove r t o th e elevators , ou r ne w readin g material in hand. "Waldro n doe s have a point," I heard him say , as I pointed ou t th e elevato r signs , min e fo r Towe r West , wher e I wa s staying, Tower East for my young friend. "Lif e in the West is increasingly becomin g th e same . Thi s hote l ha s th e sam e desig n a s on e I stayed i n i n De s Moine s jus t las t month . I bet you r roo m ha s a TV clicker on a central computerized console and a view of the courtyard and parking lot." "I wouldn' t b e surprised, " I said . "Althoug h I wouldn' t hav e minded a nationalist touc h her e o r there . Maybe I'l l find a foreign language TV channel before going to sleep. I'm trying to brush up my Spanish." "Well, goodnight, Professor," Rodrig o said. "Happy bedtime reading," I said. Rodrigo smiled slightly, waved good-bye, and disappeared int o hi s elevator.

C H £-Pm E

R

6

Citizenship: How Society Rejects the Very Persons It Most Needs

In Which Rodrigo Does Not Let Me Get Away Unscathed "Professor! What are you doing?" I looked up from m y labors to find Rodrigo , to my great pleasure , standing in my doorway. He was looking concerned. "Come on in. It's good to see you. Thanks fo r th e card saying you were coming. I called, but your secretary said you'd already left. " "What are all these boxes?" "I'm packing up. It's time for me to move on to other things. I was going to write and let you know." "So th e rumor s I'v e hear d abou t you r retirin g ar e true , then? " Rodrigo asked , worr y writte n al l ove r hi s face . "You'r e ou r roc k o f Gibraltar. Why are you leaving so soon?" "Please si t down, " I said, gesturin g towar d m y couch . "Jus t pus h those things ou t o f the way. I'm gla d enough to take a break. This is hard wor k fo r a n ol d man . Yo u neve r realiz e ho w man y book s yo u have until it's time to move." "I wen t throug h th e sam e thin g las t yea r whe n I too k m y firs t teaching position i n the Midwest. Giannin a aske d me to move som e of her thing s t o my new place because we're splittin g tim e betwee n

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the tw o cities , a s I think yo u know . But tel l m e abou t thi s mov e of yours. Where are you going? Are you really retiring for good?" "With a littl e hel p fro m som e peopl e yo u know , namel y ou r friends i n th e Immigratio n an d Naturalizatio n Service . Th e sam e folks who gave you a hard time before when you wanted to return t o the U.S. from Italy." 1 "Did the y ever . A t on e point , I wa s afrai d I' d neve r ge t back, " Rodrigo recalled. "I t too k a little doin g on my part, alon g with som e help from a friendly servic e agenc y an d a certain United State s sen ator." 2 "I remember ver y well," I said. "I, and many o f your friends here , were afraid we'd never see you again." "But no w tel l me , ho w o n eart h i s th e agenc y givin g you a har d time? You'r e a U.S. citizen, ar e you not ? You'v e bee n teachin g la w here, I assume, fo r nearl y fort y years . And were you not bor n i n th e United States?" I sighed. "Al l those things ar e true. It's a long story. Are you sur e you want to hear it?" "Of course, " Rodrig o replied . "An d I' d lik e t o d o wha t I ca n t o help." "I'm afraid it's beyond that," I said, a little resignedly. "But you're a good friend, s o I owe you a n explanation . Ca n I offer you—oops , I was about t o offer yo u a cup of coffee, bu t I just packed my espress o machine. I coul d mak e yo u som e tea . I stil l hav e m y collectio n o f bags aroun d her e somewhere . Her e the y are . And there' s ho t wate r next door in the faculty lounge. " "I accept," Rodrigo answered, getting up to accompany me, cup in hand, to the lounge. "But I'm more interested in the hot water you're in. What's happening?" As we walked bac k t o m y crowde d office , littere d wit h th e para phernalia o f man y year s o f teaching—boxe s o f teachin g notes , un finished manuscripts , memorabilia , an d th e ever-presen t blu e books—I began: "I got a letter fro m th e IN S the othe r day , askin g m e t o com e i n for what the y called an office interview . I'm sur e you read about th e new measur e tha t passe d las t month , amendin g th e constitutiona l grant of citizenship?" 3 "I did . It' s on e o f a hos t o f anti-immigran t rule s tha t hav e bee n

150 Citizenship enacted o r propose d recently , tightenin g u p th e border , requirin g the speakin g o f Englis h a s a conditio n fo r citizenship , voting , o r participation i n politica l life , an d denyin g naturalizatio n o r green card statu s t o peopl e wh o wer e entitle d t o the m before , suc h a s family members. 4 Whe n th e citizenshi p amendmen t passed , I checked t o se e i f i t applie d t o me . I t didn't , s o I breathed a sig h of relief. I never though t i t would pass, even when th e California legis lature proposed it to Congress some years ago." "A lo t o f peopl e didn't , includin g me, " I replied. "Afte r all , th e Fourteenth Amendment , whic h formerl y grante d citizenshi p t o an y person bor n i n th e Unite d States , ha d neve r bee n amende d i n it s entire history . It' s th e cornerston e o f equa l protectio n an d du e process. I t als o spell s ou t wh o ca n b e a citizen . Bu t no w everythin g seems to be under reconsideration. A new wave of nativism is sweeping the nation, even more intense than the ones we've seen at various points i n ou r history, whe n w e sa w th e countr y enac t anti-Japanes e or anti-Chines e measures , an d roun d u p an d depor t eve n legall y present citizen s of Mexican descent." 5 "All thi s i s deplorable, " Rodrig o replied. "Bu t ho w o n eart h doe s it appl y t o you ? Professor , you'r e no t someon e wh o sneake d acros s the border . Yo u spea k perfec t English , indee d ar e a distinguishe d professor an d writer. You have never been o n welfare o r committe d any crimes. So what exactly is the INS's grievance with you?" "As I said , it' s a lon g story , an d yo u mentione d yo u wante d t o help. You can't . I appreciate th e offer . Bu t m y mind' s mad e up. I'v e already bought a Winnebago, in fact. " "I can' t believ e this, " Rodrig o replied . "You'r e ou r savin g grace . Dozens, mayb e hundreds o f young professors loo k t o you fo r advic e and counsel, not least of all, myself. You've been my adviser, mentor , and soundin g board . You'v e been—i f yo u don' t min d m y saying — my 'straigh t man, ' m y alte r ego , m y interlocutor . Withou t yo u I couldn't have gotten my ideas out." "You giv e m e to o muc h credit, " I demurred . "You'l l d o fine . You're very brilliant. And well kee p in touch. I promise I'll write." "I can't believe this," Rodrigo said. "See what I'm reduced to? I' m repeating myself. First I heard, just last week, tha t m y sister Genev a is getting ready to retire. Now you! Professor, thi s is a kind of death . That's wh y I'm s o distraught. I wouldn't exis t withou t you . Do yo u

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have th e lette r th e agenc y sen t you ? Ther e mus t b e a n avenu e o f appeal. On what grounds do they want to deport you?" "They don' t sa y anything about deportation/ 7 1 replied. "An d th e letter i s already packed up. Basically it say s that the y have informa tion tha t ma y bea r o n m y entitlemen t t o Unite d State s citizenship , namely tha t m y fathe r ma y hav e bee n a n illega l alie n a t th e tim e I was born. They hav e a few question s abou t tha t an d als o abou t th e status o f m y mother . The y aske d m e t o brin g m y birt h certificate , records of any foreign trave l or residence I may have had, an d of any service in a foreign army . They als o asked me to bring a copy of m y parents' marriage license." "Was your father in fact a n illegal alien?" "I think h e may have been," I replied. "He' s a proud man , an d so I've neve r aske d hi m directly . Bu t h e immigrate d fro m Aguascali entes, Mexico, at th e age of fifteen wit h n o money an d no friends i n the U.S. to sponsor him, at least that I've heard of. " We both started . The phone was ringing. It was my moving com pany. I listened, then said, "Ten-thirty would be fine. Just drive up to the loading door. My office i s Room 1201. " "It's funny, Professor, " Rodrigo continued. "I've never asked about your ethnicity , althoug h fro m you r appearanc e an d identificatio n with us , I assumed yo u migh t b e black . Bu t you r nam e sound s La tino. I had n o ide a yo u migh t hav e a citizenshi p problem . Yo u ar e one o f th e mos t eminen t civi l right s scholar s i n th e Unite d States . The ver y ide a tha t w e migh t los e you , tha t th e governmen t migh t deport y o u . . . " "They didn' t sa y anythin g abou t deportation . I' m deportin g my self," I said quietly. "But their letter is spurring you, I assume?" "It doe s have somethin g t o d o with it , I must admit . Bu t it' s th e entire panopl y o f anti-immigran t measure s an d propositions , En glish-only law s i n effec t no w i n severa l states , an d Propositio n 187 type measures that have already been enacted in California an d elsewhere denyin g education , welfare , an d othe r form s o f suppor t t o illegal and in some cases even to legal immigrants." "Giannina sai d somethin g lik e tha t happene d t o he r neighbor , a cleaning woman. She had to move." "It's th e new eugenic s movement an d books like The Bell Curve,

152 Citizenship which encourage society to look at people like you and me as threats to the national gene p o o l . . . " "But you r daughter s graduate d fro m Swarthmor e an d Minnesota . They were honors students. Professor , yo u shouldn' t overreact . Firs t of all , they'r e no t talkin g abou t you . An d second , w e ca n fight thi s thing. I'l l represen t you . W e mus t as k fo r a hearing. " Rodrig o wa s pacing my office nervously , stoppin g only now and then to take a sip from hi s tea cup, balanced precariously on the arm of my sofa, whic h was cluttere d wit h book s an d boxe s i n preparatio n fo r th e van' s arrival tomorrow . "That's all true," I conceded. "An d I shall miss my daughters very much. Bu t they , lik e you , ca n com e visi t m e i n m y ne w country . And, as I mentioned before, there' s always the mail." I took a plaque down from th e wall and placed it carefully i n a padded box.

In Which Rodrigo and I Take a Last Look Around, and Discuss Expatriation "The mail . Great . I get t o kee p i n touc h wit h m y mento r b y mail. I bet i t take s onl y thre e week s fro m whereve r you'r e goin g t o be. " Rodrigo's voice was filled with disappointment . "Rodrigo, I ca n se e you'r e wrough t up . An d fo r m y part , I' m cramped and tired from packin g all these boxes. How would you like to go for a short run? It'll be my last around this campus. We could run off our excess energy while I show you some of my favorite places." "I'd lov e to, " Rodrigo replied . "I n fact , yo u kin d o f promise d m e you'd go running one time before. But I didn't bring any equipment. " "I'm pretty sur e I've got a second set right. . . here, " I said trium phantly, rummaging behind a filing cabinet . They'll be a little big in the waist, but i f you just pull the drawstring, I'm sur e they'll fit. Oh , and what size shoe do you wear? I have an extra pair of elevens." "Elevens ar e perfect, " Rodrig o replied . " I hav e bi g feet. " W e changed clothe s and I admonished Rodrig o to take things easy on an old man. A minute later we were on our way out the door. "This is a beautiful campus, " Rodrigo exclaimed a s we rounded a corner and came upon a group of Gothic buildings surrounded by tall trees. "But tell me, Professor, wha t was the date of that letter you got from th e INS?"

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'Tve alread y packe d it . An d than k yo u ver y muc h fo r you r kin d offer, Rodrigo . The prospect of free legal representation from a lawyer of your brillianc e i s th e on e thin g tha t migh t possibl y temp t m e t o make a fight of it. And, on substantive grounds, I think I might hav e a chance . Bu t I' m no t goin g t o fight it . I spent si x year s i n Mexic o when I was a teenager. I have colleague s in that country . The atmo sphere there is in man y ways freer tha n i t i s here. There is no wav e of nativism . N o on e ther e look s upo n someon e lik e yo u o r me a s a potential welfare cheat , merel y because of the color of our skin, o r a perpetual, irresponsibl e breede r o f defectiv e children . Watc h ou t fo r that sprinkler. " I could se e Rodrigo was takin g menta l notes . "Professor , yo u sa y you're not goin g to fight this , but you may change your mind. Hun dreds of your fans are going to be upset—no, bereft—when the y hear you are leaving. You have been a beacon to all of us. You have many of your best years ahead of you. When did you live in Mexico?" "I'm huffin g an d puffin g already . Coul d w e slo w down ? I wa s twelve years old. My Dad decided to pack it in and move back to his home country . H e ha d spen t nearl y twenty-fiv e year s i n th e U.S. , marrying m y mother , a U.S . citizen , yo u wil l b e happ y t o note. " (Rodrigo did.) "Although whether my birth came before or after thei r marriage an d m y father' s subsequen t naturalization , I do no t kno w and have never asked . M y father i s a man o f fierce pride an d exceptional intelligence , a self-taugh t engineer . W e move d aroun d a lo t when I was young . I never kne w whethe r thi s wa s becaus e h e an d my mother were trying to stay one step ahead of the INS, or whether he change d job s frequently becaus e o f racism . I know h e was ambi tious an d wante d t o ge t ahead . Bu t h e looke d ver y Mexican—eve n more tha n I—an d spok e with a n accent . When I was twelv e an d h e about forty, he announced we were all going to Mexico." "How did you take that?" Rodrigo asked. "It wa s quite a shock a t first. I had t o learn Spanish . But my Da d prospered. H e caugh t th e first wav e o f nationa l economi c develop ment and became moderately successful. " "And what was it like for you?" "Wonderful! I gre w u p bilingua l an d bicultural , attendin g a n American schoo l where half o f my classes were in English, the othe r half i n Spanish . Som e o f th e kid s wer e expatriat e Americans , lik e me, the others, Mexican nationals from Mexic o City."

154 Citizenship "It sounds a little like the base school I attended in Italy," Rodrigo commented. "It mus t hav e bee n similar . Thi s wa s durin g th e year s immedi ately followin g th e Hollywoo d blacklist . Let' s g o thi s way . There' s something I want t o show you. Anyway, half o f the friends I went t o school wit h ha d name s lik e Trumbo , Bunuel , Butler , an d Maltz . I didn't kno w thi s a t th e time , bu t man y o f the m wer e son s an d daughters o f parents wh o had left th e United State s t o escap e persecution. Man y parent s continue d writin g unde r pseudonyms . Mos t were leftists. It was a fascinating community. " "Sounds like the United States did Mexico a great favor by sending them som e exceptionally talented people." "They did . An d whethe r they'r e doin g othe r countrie s a simila r favor now , I can't say . I am leaving, however. As in the fifties, whe n a hos t o f creativ e peopl e from Lo s Angeles an d th e writing commu nity foun d tha t th e ai r wa s free r elsewhere , I' m goin g t o tr y i t out . Not tr y i t out , actually . I' m leavin g permanently—a s permanentl y as these things are, that is." "Professor, you'r e a n institution . W e nee d yo u here . Yo u shoul d fight thi s thing. What good will you be, sitting and enjoying yoursel f in some foreign capital ? I really need to look at that letter. I hope the time for an appeal has not passed. You may have missed the date for your interview, but I'm sur e I can get them to schedule another. " Rodrigo seeme d genuinel y upset . "Slo w dow n a little . Yo u kee p picking u p th e pace. Relax yourself, an d let m e tel l yo u a story. It' s one of the oldest in the world: old, battle-scarred veteran steps aside. It's time . It's tha t simple . I've bee n laborin g in th e trenche s o f civi l rights struggle s fo r nearl y a hal f century . I' m tired . It' s tim e fo r people lik e yo u t o tak e u p th e cudgel . Yo u nee d m e les s tha n yo u think. I' m flattere d tha t yo u thin k I' m indispensable . Bu t I need a new challenge . The government' s lette r onl y serve d a s the occasio n for my doing something I'd been thinking about for some time." "Do you have enough money to retire?" Rodrigo asked. "I do . I have m y universit y annuit y an y tim e I want an d socia l security click s in onl y a year from now . My daughters ar e all grown up. I'll be fine." "But, Professor , you'l l b e ou t o f touch . Ho w ca n w e reac h yo u when we need you? Retir e if you must. Bu t stay in the State s wher e young scholars can at least seek you out. You could write books, give

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an occasiona l speech—i f you r tim e an d energ y permit , tha t is . Are you planning to sell your condo?" "It's in escrow." Rodrigo's face fell. "So, you're really planning to do it then?" "I am . I'l l trave l aroun d Mexico . I'v e alway s love d art . I hav e friends there , both in law and the art world. In fact, I'm meeting with some peopl e i n Chiapa s jus t nex t month . An d i f thing s don' t wor k out for some reason, I can always come back." "I'm no t sur e you're righ t abou t that , Professor, " Rodrig o replie d with alacrity . " I wis h you' d le t m e check . Suppos e yo u mis s th e meeting th e IN S want s t o schedule . I f yo u the n jus t tak e of f fo r another country , the y ma y tak e tha t a s evidenc e o f inten t t o re nounce you r U.S . citizenship. A line o f Suprem e Cour t case s hold s that denaturalizatio n i s possibl e i f a perso n ha s indicate d suc h a n intent. 6 That way, even if the facts o f your birth, your father's status , his marriage , an d s o o n ultimately d o not bea r ou t th e INS' s suspi cion that you are not a citizen—if yo u are one, in other words—the y may still denaturalize you.7 That's why it's incredibly important tha t we go to the hearing. I wish you woul d hunt fo r th e letter whe n w e get back." "You mak e a vali d point , technicall y speaking . Bu t m y min d i s made up." "Professor, I' m sur e we could prevail. The agency always has discretion. The facts in your case seem to me not black and white. Your absence from th e country too k place at an early age and was beyond your control. 8 Unlik e me , yo u neve r serve d i n a foreign army . Th e facts o f you r father' s entr y ar e probabl y los t i n time . B y th e sam e token, yo u canno t possibl y b e expecte d t o produc e you r parents ' marriage certificate . Yo u hav e a n unbroke n lin e o f residenc e i n th e U.S. You are a respected teacher. You have two outstanding children , and hav e never , I assume , bee n o n welfare . Yo u hav e friend s an d allies. The letters will come pouring in. We can fight this." "Rodrigo, I a m a la w professor . Al l m y lif e I hav e taugh t m y students t o uphol d th e law . Wha t kin d o f exampl e woul d I be i f I flouted i t now , o r argue d fact s tha t I canno t prove , i n orde r t o ge t what I want? Th e countr y ha s decide d i t doesn' t wan t peopl e lik e me. 9 I t ha s change d th e rule s fo r citizenshi p and , a s I read th e ne w measure, made them retroactive. They apply to me, or very probably do. I could argue for an exception, thro w myself o n the mercy of th e

156 Citizenship agency, flood th e hearin g office r wit h letters . Bu t thi s woul d b e t o ask for special advantages not availabl e to other, less well-connecte d people. The agency must b e holding hundreds o f hearings across th e country righ t now . Wh y shoul d I expec t t o b e treate d bette r tha n others?" "So you're going to leave quietly. Professor , you'v e alway s been a fighter. Wha t abou t Marti n Luthe r King ? Wha t abou t lega l instru mentalism? Wha t about civi l disobedience?" 10 "I have been a fighter, as you say , but fo r cause s I believe in, an d on behalf o f others. Also, I have never counseled anyone to break th e law. The law is my profession. I love it. I believe we must bow down even to unjust law s because, unless they are clearly unconstitutional, they are the will of the people. And fighting a single unjust la w is not the sam e as fighting a change in th e country' s ver y self-definition. 11 I'm no t s o sure that i s something on e is entitled t o do. Look at tha t fountain." "Gorgeous. But civil disobedience aside, this law may be unconstitutional. I'll fight it . I'll represen t yo u an d argue it al l the way up t o the Supreme Court. " "Rodrigo, ho w ca n a provisio n o f th e Constitution , a s th e ne w measure is, be unconstitutional?" "It woul d tak e a nove l argument , base d o n th e structur e an d meaning o f th e documen t a s a whole. That way , i f a new provision , such a s thi s ne w claus e amendin g th e Fourteent h Amendmen t t o deny citizenship to persons like you, is out of harmony with the rest of the document, a s I believe it is, a court could strike it down. " "And do you believe the current Suprem e Court would?" "There's alway s a chance. It's tru e th e Cour t i s conservative—i t has mad e i t easie r fo r schoo l district s t o terminat e a desegregatio n order12 and harder for state s to redistrict t o increase the chances of a minority candidate. 13 I t ha s als o applie d th e mor e restrictive , com pelling-interest standar d t o federa l affirmativ e action. 14 Bu t I stil l think we would have a fighting chance. The Court may treat citizen ship more solicitousl y tha n i t does , say, voting rights o r affirmativ e action. It is a more basic aspect o f our political life. I would expect i t to loo k closel y a t a measure lik e this , a s with an y o f th e othe r ne w measures that are part of the nativism movement. " "It seem s t o m e ther e wa s a n earlie r Suprem e Cour t decisio n o n citizenship."

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Rodrigo winced . "You'r e right— Died Scott vs. Sandfoid, 15 i n which th e Suprem e Cour t hel d tha t a slave had n o rights which th e courts wer e boun d t o respect . Bu t tha t opinio n i s notorious. 16 Th e Supreme Cour t toda y woul d neve r issu e anythin g similar . I t ha s it s own reputatio n t o thin k about—it s standin g i n th e worl d commu nity, its place in history." "But justice s rarel y decid e case s i n way s tha t ar e to o fa r afiel d from th e country' s genera l moo d an d temper . An d tha t moo d toda y is distinctly antiminorit y an d antiforeigner. Ther e ar e a dozen mea sures makin g i t difficul t fo r immigrant s t o com e here . W e cu t of f social services to them once they are here and deny them the right to an education . W e enac t English-onl y laws , an d den y naturalizatio n to anyon e wh o can' t spea k an d writ e English . Affirmativ e actio n i s under attack , a s i s multiculturalis m o n campuses. 17 Cutback s i n welfare an d proposal s t o limi t i t fo r familie s wh o hav e to o man y children are thinly aimed at people like you and me. In a climate like the present one do you really think th e Suprem e Court woul d strik e down a n amendment , enacte d b y th e people, aime d a t denyin g citi zenship to newcomers and even long-term residents?" "We'll attac k th e measur e fo r bein g retroactive . I t change s th e rules for citizenship for people who have been here all their lives." "Do you mind if we walk a little? I don't see how you do it. You're talking a blue strea k an d running what mus t b e seven-minute mile s at the same time." Rodrigo obediently droppe d t o a walk. "It' s true, " I said. "E x post facto law s an d bill s o f attainde r ca n sometime s b e struc k dow n i f they violat e settle d expectation s o r see m vindictiv e i n character. 18 But thi s i s a n ac t o f th e people. It amend s th e basi c document . No , Rodrigo, I' m afrai d you r cas e i s harde r tha n yo u think . Yo u migh t lose, eve n i f I allowed yo u t o file sui t o n my behalf , whic h I won't. And o n th e substantiv e challenge—t o th e constitutionalit y o f th e measure that narrows citizenship for native-born offspring o f aliens— you kno w a s wel l a s I ho w difficul t i t i s t o challeng e a measur e enacted by the people as a whole, or their representatives. " "Alas, I' m wel l aware, " Rodrig o replied . "Referend a an d direc t ballot petitions are extremely difficult t o set aside. It's almost impossible t o prov e a racis t o r sexis t inten t o n th e par t o f thousand s o r millions o f voters voting i n th e privacy o f thei r ballo t boxes. 19 Judicial deference i s at its highest whe n a law come s into existenc e thi s

158 Citizenship way, a s oppose d t o agenc y rule-makin g o r legislativ e enactment . Courts conside r direc t democrac y th e wil l o f th e peopl e an d ar e reluctant t o find that wil l tainted by an illegitimate motive. 20 Ther e have been a few exceptions , however. 21 Perhap s we could argu e tha t one of them applies here." "I doubt w e could," I replied, "eve n i f I were willing t o make th e effort, whic h I a m not . Ther e ar e tw o reason s fo r doubt . First , th e country is in no mood to show generosity toward outsiders. We are in the mids t o f one of the mos t virulen t period s of nativism i n history . Courts cannot but heed what is going on in the wider society. Second, there has been put forward in recent years a powerful theoretica l argument for closing the borders. I am sure you are familiar with the communitarian argument put forward by Peter Schuck and others." 22

In Which Rodrigo and I Discuss the Idea of Citizenship "You mea n Schuck' s articl e i n th e Columbi a La w Revie w an d hi s later book?" I nodde d an d Rodrig o continued . "The y argu e tha t a societ y i s entitled t o engag e i n self-definition , t o determin e wha t kin d o f a people it wants to be. It is entitled to decide its traditions, principles, customs, and mode of government. They connect this argument wit h classical notions of the autonomy o f the state. They point ou t that if a hord e o f outsider s wer e fre e a t an y tim e t o ente r th e societ y an d change it s values , customs , norms , an d practices , th e societ y a s a self-determining livin g thin g woul d ceas e t o exist . Th e outsider s have thei r ow n nation , thei r ow n sendin g country . I f the y wan t t o live i n a different kin d o f society , thei r recours e i s eithe r t o chang e their home stat e o r find a new, mor e congenia l on e willing t o admi t them. The y d o not hav e th e right , unde r political theor y o r interna tional huma n right s law , t o migrat e e n mass e t o a societ y wher e the standar d o f livin g i s highe r an d the n deman d tha t i t chang e t o accommodate them. " "Rodrigo, I am full y familia r wit h tha t argument, " I replied qui etly. "And I half agre e with it. That, in part, is why I am going. If this country want s t o adop t a nativis t policy , I a m entitle d t o argu e against it . Bu t i f m y vie w fail s t o carry , I have n o recourse . I mus t

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leave. I a m no t par t o f thi s society' s freel y selecte d pla n an d self definition." "We don't kno w tha t fo r sure , Professor, " Rodrig o said , hi s voic e rising. "Al l yo u hav e i s a lette r invitin g yo u t o com e i n t o talk . I t may all be a mistake, a misunderstanding." "I doubt it. The other national currents we spoke of—the English only measures and immigration cutbacks, 23 the attacks on multicul turalism underwa y a t practicall y ever y campus—ar e ver y popular . The ne w eugenicist s ar e winnin g wid e acclai m an d writin g best selling books. 24 Societ y seem s t o hav e mad e it s decision . I'v e mad e mine." "We ca n tak e o n th e Pete r Schuc k argument , Professor . W e ca n work togethe r t o chang e th e atmospher e o f hat e an d xenophobia . Even thoug h yo u ar e a voice i n th e wilderness , peopl e stil l respec t you." "The Schuck argument is unassailable. How would you argue that a peopl e d o no t hav e th e righ t t o determin e themselve s an d thei r own definition? " "Easy," Rodrig o replied . "On e simpl y take s th e argumen t bac k a step. One asks how it is that the community came to have its current character, it s curren t polity . If th e mean s by which i t cam e t o hav e its current compositio n are flawed, the n th e community has an obligation not to remain the same, but to change itself t o right the wrong that has been done." "I could use an example." "Sure. Suppose a community has committed genocide, nearly wiping out a minority group . Some years later, th e group shows signs of making a comeback, s o the wide r societ y enact s measure s designe d to mak e thi s impossible . I t bar s thei r members—one s wh o hav e relocated abroad , say—fro m immigrating . I t forbid s thei r language , religion, and customs. It consigns them t o inferior school s and take s measures t o dilut e thei r votin g strengt h an d jo b prospects . Whe n challenged, th e society says it has deliberated. It has consulted itsel f and decide d i t like s thi s self-definition , thi s constellatio n o f color ations and traits. We would immediately se e the illegitimacy of such a response. The curren t compositio n i s tainted b y the massacre, an d is not entitled to respect." "And do you think the same holds true of today?" I asked. "I do," Rodrigo replied emphatically . "Latino s an d Asians, in th e

160 Citizenship main, ar e no t th e sourc e o f nativism . Th e stronghold s ar e i n th e white communit y an d a fe w black s wh o onl y se e thes e other s a s competition. Ye t thos e othe r tw o minority group s are the very one s who have been exclude d fro m th e political community . Wh y woul d we—why shoul d you, Professor—bow meekl y and accept as inevitable a fate that was made without us?" "I gues s I' m read y t o jo g a little . I n wha t sens e wa s i t decide d without us?" "Our numbers an d impact hav e been artificially suppressed . Society doesn' t allo w immigratio n b y person s wh o migh t sa y thing s the governmen t doe s not wan t t o hear. Beginnin g with th e Chines e Exclusion cases, 25 and before tha t th e forced relocatio n o f Indians, 26 we mad e sur e tha t foreig n worker s an d inconvenien t population s stayed where we wanted them—usually fa r away. Slavery, of course, brought million s o f African s here , bu t w e mad e sur e the y ha d onl y the impac t w e wanted the m t o have , mainl y throug h thei r wor k i n the fields an d gran d home s o f th e South . Ever y Souther n stat e en acted laws prohibiting teaching them to read, and, even after Emanci pation, Ji m Crow laws and separat e but equa l schools impede d thei r progress an d abilit y t o hav e an y sor t o f intellectua l o r political im pact on the shape of the majority culture. 27 Thus, the composition of the U.S . citizenry , a s wel l a s th e conten t an d rang e o f idea s i t ha s been exposed to, have been shaped by racism." "So if w e follow th e Pete r Schuc k principl e an d allo w th e peopl e to defin e themselves , w e merel y forwar d an d giv e effec t t o prio r racism," I summarized. "I s that your argument?" "It is, in a nutshell," Rodrigo replied. "Citizenship is the bedrock, the basi c notio n o f politics . Th e wa y yo u defin e i t say s everythin g about you as a people. If you look around you at th e U.S. polity, tal k to them , hea r thei r ideas , you se e something tha t ha s been radicall y shaped by racism. Racism is reflected in who is NOT there, who does NOT speak, and ideas that are never heard or taken seriously. People may grow up in thi s cultur e without a racist bone in their bodies. A person ma y b e a good liberal , ma y thin k h e o r sh e i s genuinel y fai r and open-minded abou t blacks, race, Critical ideas, socialism, an d so on. But simpl y by virtue o f having grown up in a white enclav e in a world tha t i s dominantly black , brown, o r Asian, th e person has had a skewe d experience . Giv e tha t perso n a vote, as k hi m wha t sor t of society he wants, and it is absolutely predictable what he will say."

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"A society much like the one he has now," I said. "Exactly. O r perhaps , i f th e perso n i s progressive , on e wit h on e percent mor e representatio n o f outside r persons , voices , ideas , an d political power, " Rodrig o added . "I f yo u giv e a society th e power t o define itsel f an d don't tak e into account wha t ha s shaped its curren t self-understanding, you'l l ge t stasis . I'm no t equatin g Pete r Schuck , who i s a liberal, wit h Brimelow, 28 Auster 29 o r Herrnstein. Bu t thei r arguments ar e similar . There' s practicall y a straight-lin e connec tion." "So what is the solution," I prodded. "We shoul d neve r trea t preference s a s exogenous , a s givens. On e must alway s g o deeper tha n that . Th e mos t basi c political questio n for a democracy , then , i s not , wha t d o w e i n fac t want , bu t wha t should we want. We should force ourselves to deliberate, to confron t new ideas, to talk with thos e who are radically Other. Professor, yo u are the kind of person American society needs to hear. I can't believ e you ar e leaving. I don't wan t t o overd o it, bu t thi s i s a tragedy, an d not just for me. I can't exist without you, as you know . . . " "Oh, yes you can," I insisted. "Well, not easily. But society needs people like you. Western society is sinking, its standard o f living dropping, quality o f life decreas ing year by year, infant mortality , crime, and other measures of social pathology o n th e rise . W e ar e bein g overtake n b y mor e dynami c societies in othe r parts o f th e world. The cur e for th e United States ' stagnation is new ideas from minority , Latino, Asian, and non-West ern sources. 30 Yo u sa y yo u hav e a responsibilit y t o leave , i f th e American peopl e want yo u to . But I think yo u have a responsibilit y to stay . Yo u nee d t o shap e thos e preexistin g wants , desires , an d preferences, challeng e th e settle d myopi a o f ou r age . Wha t sor t o f example will you se t by leaving? What will that sa y to all the young professors o f color , minorit y activists , an d intellectual s i f yo u g o meekly? It's a cop-out. You must stay. "

In Which the Professor Exits, over Rodrigo's Strenuous Objection "I'm leaving anyway. I'm old . Perhaps my leaving will inspire other s to continue . Oh , look , we'r e comin g u p o n facult y glade . Isn' t i t

162 Citizenship beautiful? It' s my favorite par t o f campus. That's th e Chem buildin g over there . And tha t traditional-styl e buildin g ove r ther e i s th e fac ulty club." We bot h slowe d dow n fo r a momen t whil e Rodrig o too k i n th e tranquil scene. "I can see how you'll miss this place, Professor. " "I will." "You could drink th e hemlock here , just a s well as in Mexico. It's funny—we've alway s drun k coffee . Yo u coul d resig n you r positio n at the law school, or change jobs, just as you've done more than once in you r caree r t o dramatiz e a grievance. Yo u coul d g o o n th e road , speaking at dozen s of campuses and cities about the need to struggl e against th e conservativ e tid e tha t i s sweepin g th e country . You r place is here. Your friends won' t le t you starve. And you could mak e money from speakin g or publishing, probably more than you do now from you r professor's salary. " "But you'r e forgettin g on e smal l thing—tha t lette r sittin g i n m y file lik e a ticking bomb. You want m e t o spea k t o society , t o tr y t o persuade i t t o softe n it s curren t attitud e o f disdai n an d neglec t to ward its poor and minorities. But th e letter make s one thing plain— the government doesn' t want me. " "I'm sure it doesn't say that, Professor. Although you have refuse d to show it to me . . . " "Not refused. I just don't know where it is right now. " "We could easily get them t o send us another copy. But I'm sur e it doesn't announce, 'You're deported,' just like that. " "Oh, no," I replied. "I t was quite cordial. It invited me to come in for wha t the y cal l a routin e inventory , a s thoug h the y wer e jus t checking thei r files . Bu t they di d say it wa s for a 'citizenship audit, ' whatever that is. It was even addressed, 'Dea r Professor.' " "Of course, " Rodrig o replied . "Letter s fro m th e fiel d agent s ar e invariably polite , eve n whe n th e Hom e Offic e i s a s ruthles s a s ca n be. An d w e ca n capitaliz e o n that . Accep t thei r invitatio n t o com e for a hearing . I'l l g o wit h you . We'l l find ou t wha t th e ground s o f their cas e agains t yo u are . Then, we'l l dea l wit h them . We'l l docu ment whateve r the y need documented, mak e arguments i f your case falls i n the middle ground where ther e is a range of discretion. We'l l get letters from friend s testifyin g t o your good character. " "It's no t s o muc h m y characte r tha t i s a t issue , bu t tha t o f th e country. Fac e it, Rodrigo , a person lik e m e i s a n incongruit y here . I

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don't fit in. And society has made clear it doesn' t wan t t o change t o include people like me, or, maybe, you." "We shoul d struggl e t o chang e that , Professor, " Rodrig o replie d quietly. "Startin g wit h you r meeting . We'l l tal k wit h th e hearin g officer, mak e him or her understand that whatever the circumstance s of your coming to be here, I mean be born here, you are precisely th e sort of person this country needs. The officer wil l probably be college educated, mayb e a lawyer. We'l l explai n abou t dialogi c politics an d why the y shoul d lea n ove r backwards t o kee p people lik e you here . We'll poin t ou t tha t whateve r happene d t o cas t a shado w o n you r U.S. citizenship happene d a long time ag o and that yo u have been a model citizen ever since." "I di d spen d thos e si x year s ou t o f th e country, " I replied . " I consort with known race reformers an d radicals like you. I teach m y students to question illegitimate authority and challenge unfair laws, to represent th e poor and outcast, criminals , drug dealers, and other s who ar e no t exactl y i n favo r today . Al l thi s i s a matte r o f publi c record.- If there is a hearing or trial, it wil l al l come out. And if the y write to my father, wh o is an old man living in retirement i n a little town outsid e Mexico City , he'll probably tel l the m t o go to hell. He never approve d o f m y returnin g t o th e State s fo r college . An d al though he cheers when I publish and advocate on behalf o f Chicanos, blacks, and poor people, he thinks I'm craz y to stay in this mixed-u p country. Eve n i f h e ha s exoneratin g evidenc e an d document s i n hi s possession, he may refuse t o cooperate or send them." Rodrigo was silent for a moment. " I can see this line of argumen t is hopeless with you. You keep repeating over and over that w e may lose, a s thoug h that' s equivalen t t o sayin g tha t w e will . An d a s fo r your leavin g the United States , that i s a complete non sequitur. Al l the revie w committe e want s t o do , s o fa r a s I ca n tell—sinc e yo u refuse t o sho w m e th e letter—i s ascertai n you r citizenship . Eve n if they find yo u ar e no t a U.S . citizen , whic h I doub t the y will— I mean, wha t a n absurdit y i n th e cas e o f someon e lik e yo u wh o ha s lived an exemplary life here for nearly half a century—that i s not th e same as saying they ar e likely t o deport you. For all we know, sinc e this i s brand ne w legislation , the y ma y conclud e tha t yo u ar e not a U.S. citizen but allo w you t o live out th e res t o f your life here . You could no t vot e o r ru n fo r th e presidenc y o f th e Unite d States , bu t other tha n that , ther e i s littl e yo u coul d no t d o tha t yo u ar e doin g

164 Citizenship now. Yo u coul d teac h you r classes , liv e i n you r condo—assumin g we ca n rescin d tha t pendin g sale—speak , write , mee t wit h you r friends. Yo u could watch your children grow up." "They are already grown up." "Well, you coul d watch the m g o through adulthood , marry , hav e a family . Yo u coul d b e a grandfather . Don' t yo u wan t t o se e you r grandchildren?" "That depends, " I answered . "On e o f m y friends , wh o i s a rac e reformer lik e me , ha d a so n wh o gre w u p t o b e a n FB I agent . H e pulled his hair out a t first. Bu t now they have a rather uneasy , longdistance relationship." "But what about me?" Rodrigo asked plaintively. " I don't mean t o be clingin g o r self-centered . Yo u an d I ar e a team , a pair. I rely o n you, almost , fo r m y ver y voice . I sharpe n m y idea s throug h you . You're th e vehicl e throug h whic h I reach whateve r audienc e I have as a young, untenure d professo r wit h a n offbea t mind . I f you leave , where does this leave me? What about Laz?" "I'm sur e th e tw o o f yo u wil l fin d a way, " I replied . "Yo u wil l have Giannina , wh o i s als o a writer . Yo u don' t nee d m e nearl y a s much a s you think you do. Ideas have a way of getting out. They ar e more important tha n individuals, anyway. " "But thi s country' s moo d i s antithetica l t o wha t I hav e t o say . They'll liste n t o you , Professor . Yo u ar e th e softe r voice . You com mand widespread respect— " "Then why the letter that I got last week?" "It's probabl y jus t bureaucracy . The y wer e undoubtedl y jus t checking some files on a computer and ran across your name. I doubt very muc h tha t the y targete d yo u becaus e o f wh o yo u are . But a s I was saying , yo u ar e ou r spokesperson . You r gra y beard , years , an d dignified manne r cause people to listen." "The countr y i s se t o n another course . They ar e listening t o conservative ideas. They don't wan t me . Maybe they'll liste n t o you. At any rate, it's your turn. Here we are, back to the law building." "Thanks fo r th e tour , Professor . It' s lovely , especiall y th e ol d buildings. I can see why you say you'll miss this place." "I will , certainl y a t first . An d I' m gla d I go t t o sho w i t t o yo u before leaving. You saw some of my favorite places." "For a guy your age, you keep up a good pace." "I try," I said. "Woul d you like to shower? There's a small one on

Citizenship 16

5

the fifth floor. Hardly anyone uses it this time of day. I'm pretty sur e I have an extra towel, if I haven't packed them up." "In a pinch , I'v e use d pape r towel s before , Professor . I' m prett y skinny and I dry fast. " We rod e th e elevato r u p i n silence , i n th e compan y o f a late working colleagu e wh o aske d m e wha t I wa s goin g t o d o fo r m y "sabbatical." I introduced hi m t o Rodrigo , an d h e seeme d surprise d that m y young-lookin g frien d wa s a professo r fro m a well-know n state universit y i n th e Midwest . "I' m gettin g mor e grizzle d b y th e moment, o r rathe r b y th e bluebook, " Rodrig o replied , causin g m y colleague, wh o wa s notoriou s fo r returnin g bluebook s an d grade s late, to smile sympathetically . After a quick shower , w e bot h stoo d i n th e doorwa y o f m y clut tered office. "Ca n I help you with those boxes?" Rodrigo asked. "No, I only have a few more things to pack. I can finish u p in th e morning. Besides, it's easier if I pack things myself. That way I know where they are." The evenin g light wa s streamin g i n th e staine d glas s windows of my office. "I'l l miss this place. And you, too," I said. "Well, write," Rodrigo said, squeezing my arm and looking me i n the ey e fo r severa l seconds . The n h e turned , opened th e door , an d was gone.

Epilogue

So far a s Rodrig o o r an y o f th e professor' s othe r friend s an d acquain tances coul d tell , h e complete d hi s packin g an d lef t th e nex t day . Out o f curiosity , Rodrig o telephone d th e citizenshi p revie w panel , but the y decline d t o spea k wit h hi m becaus e o f th e confidentialit y of th e proceeding s an d hi s lac k o f a n explici t lette r o f retaine r o r appointment a s guardia n a d litem . Rodrig o di d no t self-deconstruct , as h e ha d declare d heatedl y an d emotionall y h e migh t i n th e profes sor's office . Instead , h e an d Giannin a vowe d t o undertak e a progra m of join t scholarshi p aime d a t continuin g th e professor' s traditio n an d memory. Severa l month s later , afte r h e ha d returne d t o hi s la w school t o begi n th e ne w term , Rodrig o receive d th e followin g lette r on flims y internationa l stationery , wit h a serie s o f indecipherabl e cancelations o n th e envelope , som e seemingl y marke d "Chiapas , MX," other s "Mexic o DF, " an d on e "Langley , Virginia. " Th e enve lope, whic h arrive d slightl y torn , containe d severa l page s o f note s and th e followin g letter : Dear Rodrigo, You will be happy to know that I am safe and staying with friends i n a small town in south central Mexico, near Oaxaca. The camper held up well, although I had to make an emergency stop in the desert on the way down when a part gave up the ghost. Detroit just doesn't make cars the way they used to. But an expert local mechanic improvised a new part out of ones on hand, and I was on my way the next day. 166

Epilogue 16 I move into my new place in town next month. The address is on the letterhead. I'l l b e near th e universit y an d th e outdoo r market . Pleas e come down and visit me. This place has the best coffee i n the world. I was planning on giving it up—my doctor has been after me for a while, you know—but it's so good down here it's proving difficult. Remembe r that tim e w e had empanada s a t tha t littl e restauran t dow n th e stree t from the law school? If you come down, I'll show you a place that rivals even those. Bring Giannina. How's her Spanish? There's a writer's center in town and also one in San Miguel Allende, not too far away. That was quite some run we had the last day. It motivated me to gear up my exercise program. I've been going out every day, despite the high altitude. The local people are pretty friendly. A puzzled man on a burro even offered m e a ride the other day . It was hot an d he must hav e fel t sorry for an old guy loping down the dusty road. I've been going through some papers and discovered these notes from our many conversations. I thought you should have copies. Remember that first one, when you had just returned from Italy and were checking out U.S. law schools ? I t seem s lik e suc h a long tim e ago . We talke d about your plans, and you laid out your theory of cultural change and a possible role for minorities in arresting the West's decline. I've also got notes on that second one, on law and economics, in which you put for ward your remarkable though t experimen t o n why the fre e marke t of economic trades does not drive out racism, and the third one as well, in which I learned that, contrary to what you say, you do have a spiritual side. Remember the time you and Giannina were feuding and I helped out? We talked about anti-essentialism, th e white feminist movement , an d the relationship of men and women of color. It's all there. I hope you can read my writing. (If not, ask my former secretary for help; she's had lots of practice!) We had all those talks, too, about affirmativ e action , tha t alarming one on the assault on narrative jurisprudence after which you disappeared on me, and that even scarier one with Laz on the right-wing surge taking place right now. Make whatever use of this stuff you care to. I quitclaim it all to you— you're the author and inspiration for most of it anyway. My own role, now that I'm a retiree with time on my hands? Like a lot of displaced and unemployed people, I've been doing a lot of thinking and talking. As I might have mentioned, last week I met with some folks in Chiapas. Leaders of the farm revolt movement. We had a lot in common. Fascinating types, and very political. I can introduce you to them when you come down here, if you do. As for me, I'll use the apartment i n town as a base, but keep on th e

7

168 Epilogue move. The littl e Winnebag o gets me aroun d comfortably . I give talks, meet people , and buy pottery fo r my collection. My Spanish is getting better an d better . Mayb e I'l l b e bac k sometime , mayb e not . Kee p healthy, and send me drafts of your work. Best to Giannina and Laz. A big abrazo, The Professo r

N O T E S

Notes to Chapter 1 1. RICHAR D DELGADO , TH E RODRIG O CHRONICLES , ch . 9 (1995). 2. Th e magazine, a s I learned later , was RAC E TRAITOR , edite d by Noel Ignatiev and John Garvey. The package also contained Treason to Whiteness Is Loyalty to Humanity, An Interview with Noel Ignatiev of Race Traitor Magazine, UTN E READER, Nov./Dec. 1994, at 83. 3. CHRONICLES , supra note 1 , at ch. 9 (discussing critique of law reviews and legal scholarship). 4. Id. (describing role of young teenagers). 5. Id. (summarizing critique of storytelling scholarship by these and other scholars. See also Jane Baron, Resistance to Stories, 67 S. CAL . L . REV . 25 5 (1994) (on the critique of legal storytelling). 6. CHRONICLES , supra note 1, at ch. 1 (describin g Rodrigo's deportation). 7. Id. at ch. 2 (describing how Rodrigo got back to the U.S.). 8. Id. 9. DAVI D LODGE , SMAL L WORLD : A N ACADEMI C ROMANC E (1984) , tells th e stor y o f a n ambitiou s academi c wh o i s abducte d fro m th e Vill a Serbelloni in Bellagio, Italy (where, coincidentally, Rodrigo's Seventh Chronicle was written amid tranquil surroundings). 10. CHRONICLES , supra not e 1 , a t chs . 1 , 3 (Wester n societ y turnin g increasingly deaf ear to minorities). See also Cathy Scarborough, Conceptualizing Black Women's Employment Experiences, 9 8 YAL E L.J . 145 7 (1989 ) (discussing ways law creates invisibility of black women). 11. See Mari Matsuda, When the First Quail Calls: Multiple Consciousness as Jurisprudential Method, 1 1 WOMEN' S RTS . L . REV . 7 (1989) (sug gesting that an underlying bond unites all oppressed peoples). 12. CHRONICLES , supra note 1 , at ch. 8. 13. Id. a t Appendix B (white-collar an d corporate crim e more dangerous, to lif e an d limb , an d costly—i n a n aggregat e an d a per capit a sense—tha n street crime). 14. O n the decrease in empathy generally, or the need for the law and legal discourse to be more empathic, see, e.g., Anne C Dailey , Feminism's Return 169

170 Notes

to Chapter 1

to Liberalism, 10 2 YALE L.J . 1265,1266-6 7 (1993) (book review); Richard Delgado & Jean Stefancic, Images of the Outsider in American Law and Culture: Can Free Speech Remedy Systemic Social Ills! 77 CORNELL L . R E V. 125 8 (1992); Lynn e Henderson , Legality and Empathy, 8 5 M I C H. L . REV. 157 4 (1987); E L I Z A B E T H S P E L M A N , INESSENTIA L W O M A N : P R O B L E M S O F E X -

CLUSION I N F E M I N I ST T H O U G H T 1 2 (1988). See also Natali e Angier , Society's Glue: Science Examines Empathy's Role for Man, Beast, DENVE R P O S T , May 9 , 1995, at 2A, col . 3 (leading scientis t quote d a s pointing out one drawback o f empathy: namely , tha t identificatio n wit h one' s ingrou p tend s t o be accompanied by dislike of other groups); Scarborough, Conceptualizing, supra note 10 . For the view that empath y is no replacement fo r legality, see Toni M. Massaro, Empathy, Legal Storytelling and the Rule of Law, 8 7 M I C H. L . REV . 2099 (1989) . For a critique of empathy tha t parallel s thi s on e to some extent , but focuse s o n its role i n liberal politica l theory , se e Cynthia V . Ward, A Kinder, Gentler Liberalism! Visions of Empathy in Feminist and Communitarian Literature, 6 1 U. C H I. L. REV. 92 9 (1994). On variou s definition s o f empathy, se e id. at 933-34. Rodrigo and the professor us e the term in its ordinary languag e sense—th e capacit y t o project or imagine the thoughts an d feelings of another person . 15. O n "Giannina," Rodrigo' s companio n an d soul mate , se e C H R O N I CLES, supra not e 1 , at chs. 3, 4, 6. Giannina, a published poe t an d playwright , and Rodrig o have been togethe r for nearly tw o years . 16. Attribute d t o Antonio Gramsci , fals e consciousnes s consist s o f an oppressed individua l o r group's takin g o n the values an d perspectives o f the oppressor class , thereb y becomin g complici t i n thei r ow n oppression. See G E O R G L U K A C S , H I S T O R Y A N D C L A S S C O N S C I O U S N E S S (Rodne y Living -

stone trans. , 1971) ; Dunca n Kennedy , Antonio Gramsci tem, 6

and the Legal Sys-

A . L . S . A . F O R U M 3 2 (1982) .

17. Kennedy , System, supra. 18. See H . K R A U S S , T H E S E T T L E M E N T H O U S E M O V E M E N T I N N E W

YORK C I T Y , 1886-191 4 (1981) ; H A N D B O O K O F SETTLEMENT S (R . Woods &

A. Kenned y eds. , 1970) (on the education thes e house s provide d fo r thei r members); H . K A R G E R , T H E S E N T I N E LS O F O R D E R: A S T U D Y O F S O C I A L C O N T R O L & T H E M I N N E A P O L I S S E T T L E M E N T H O U S E M O V E M E N T , 1915 — 1950 (1987) ; JAN E A D D A M S , T W E N T Y YEAR S A T H U L L - H O U S E (1980) . 19. See, e.g., K A R G E R , S E N T I N E L S , supra-, A D D A M S, supra-, PEARL I D E L I A E L L I S , A M E R I C A N I Z A T I O N T H R O U G H H O M E M A K I N G 19-2 9 (1929) .

20. Derric k Bell , Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 8 5 YAL E L J . 470 (1976). 21. Id. at 470-72, 482-93. 22. I n other words , A, who wants t o empathize wit h a radically differen t person, B , instead imagine s ho w he , A, would fee l a s a B.

Notes to Chapter 1 17 1 23. GERAL D LOPEZ , REBELLIOU S LAWYERING : O N E C H I C A N O 'S V I SION O F PROGRESSIVE LEGA L PRACTIC E (1992) .

24. Images, supra not e 14 , at 1261, 1281 . See also Luci e White , Seeking ... "The Faces of Otherness/' 77 CORNELL L . REV. 1499, 1508-0 9 (1992) . 25. I was thinking , fo r example, o f how no black civi l right s organizatio n had filed a n amicus brie f i n Korematsu (th e Japanes e internmen t case) , and how some men of color still patronize the women in their lives. See CHRONICLES, supra not e 1 , at ch. 6 (discussing this and other unlovely traits) . 26. O n double consciousness , accordin g to which black s se e events fro m two perspective s a t the same time—tha t o f the outside world , accordin g to which the y ar e despised, an d their own, accordin g to which the y ar e normal, see W . E . B . D U BOIS, T H E SOULS O F BLACK FOLK S 16-1 7 (1903) ; RALP H ELLISON, T H E INVISIBLE M A N 1- 7 (1952) .

27. I am grateful to Margaret Montoya for this example . 28. O n Cortes's (an d La Malinche's) role , se e WILLIAM H . PRESCOTT, 1 M E X I C O A N D THE LIFE O F THE C O N Q U E R OR FERNAND O CoRTe s 208 , 228 ,

238, 240 , 247, 274 , 290, 303, 310, 328, 333, 372, 375, 424 (1900); 2 id. 60 , 68 , 94, 144 , 190, 281, 33 8 (1900) ; see also BERNA L D I A Z DE L CASTILLO , T H E

C O N Q U E S T O F MEXIC O 1517-2 1 (1956) .

29. E.g., Clar k Cunningham , The Lawyer as Translator, Representation as Text: An Ethnography of Legal Discourse, 77 CORNEL L L . REV . 1298, 1368-8 7 (1992 ) (speculatin g o n the ethics o f broadcasting a client' s stories). 30. See M I C H E L F O U C A U L T , POWER/KNOWLEDGE : SELECTE D INTER -

VIEWS A N D OTHER WRITING S 1972-7 7 (Coli n Gordo n ed . & Colin Gordo n et al. trans., 1980) . 31. E.g., U.S . D E P ' T O F LABOR , OFFIC E O F POLIC Y P L A N N I N G A N D RESEARCH, T H E N E G R O FAMILY : T H E C A S E FO R N A T I O N AL A C T I O N

(1965); D A N I E L PATRIC K M O Y N I H A N , FAMIL Y A N D N A T I O N (1986) , whic h

was written in an effort t o understand and help, is today considered virtuall y an argument for abandoning hope for that "pathological" institution. See also PATRICIA A . TURNER , I H E A RD I T T H R O U GH TH E GRAPEVINE: R U M O R IN

AFRICAN AMERICA N CULTUR E (1993 ) (on urban myth s tha t circulat e in the blac k community, - autho r describe s th e myths a s effort s t o increas e community an d empowerment, bu t drawing attentio n t o them run s ris k of making th e community loo k ignoran t an d ridiculous) ; KRISTI N BUMILLER , T H E CIVI L R I G H T S SOCIETY : T H E SOCIAL C O N S T R U C T I O N O F V I C T I M S

(1988) (boo k b y progressive scholar , base d o n interviews wit h victim s of discrimination, no w used b y some t o argue agains t civi l right s law s and enforcement o n the ground tha t the y simpl y encourag e a victim mentality) . On th e possibility tha t "imaginative " empath y ca n reinforce hierarchy , see Ward, Kinder, supra not e 1 4 at 950-51.

172 Notes

to Chapter 1

32. E.g., R I C H A R D A . P O S N E R , T H E E C O N O M IC A N A L Y S I S O F L AW (4th

ed. 1992 ) (on the view tha t la w should b e efficient—i.e., maximiz e trade s and transaction s tha t wil l promote th e satisfaction o f preferences). 33. E.g., A N D R E W H A C K E R , T W O N A T I O N S: BLAC K A N D W H I T E, SEPA -

RATE, H O S T I L E , U N E Q U A L 50-52 , 93-13 3 (1992) ; Lance Morrow, Voters Are Mad as Hell, T I M E , Mar . 2, 1992 , at 16 .

34. I thought o f Willie Horton, an d Jesse Helms's "whit e hands " commer cial, an d also o f the way many politician s hav e bee n rallyin g aroun d suc h neo-nativist theme s a s immigration contro l an d English Only , whic h are aimed a t making lif e difficul t fo r Latinos an d other recen t arrivals . See, e.g., Anthony Walton , Willie Horton and Me, N.Y. T I M E S M A G . , Aug. 20, 1989 , at 52 ; Richard Lacayo , For Whom the Bell Curves, T I M E , Oct . 24, 1994, at 66; Isabe l Wilkerson , Racial Harassment Altering Blacks' Choices on Colleges, N.Y . T I M E S , Ma y 9, 1990 , at A-l; To m Tancredo, Make a Candidate Sweat—Ask about Illegal Immigrants, DENVE R P O S T , Apr . 30, 1995 , at E-l, col. 1. 35. Richar d Whitmore , Adults in Poll: It's Worst Time since Slavery, D E N V E R P O S T , Ma y 27 , 1994 , at 2-A , col . 2.

36. See Pierre Schlag , Normativity and the Politics of Form, 13 9 U. P A . L. REV . 801 (1991); Richard Delgado , Norms and Normal Science: Toward a Critique of Normativity in Legal Thought, 13 9 U. P A . L. REV. 933, 957-5 9 (1991). 37. Mille r & Kahneman, Norm Theory, 9 3 PSYCHOL. REV . 136 (1986). 38. O n helping behavior , se e Faye Crosb y e t al. , Recent Unobtrusive Studies of Black and White Discrimination and Prejudice: A Literature Review, 8 7 P S Y C H O L . BULL . 54 6 (1980).

39. Stephe n G . West e t al., Helping a Motorist in Distress: The Effects of Sex, Race, and Neighborhood, 3 1 J. PERSONALIT Y & S o c . P S Y C H O L. 691 ,

693-94(1975). 40. C H R O N I C L E S , supra not e 1 , at ch. 1 (on the need t o provide a self interest basi s for affirmative actio n an d racia l justice) . 41. Id. On the economic-determinist (interes t convergence ) vie w o f civil rights law , se e als o D E R R I C K BELL , R A C E , R A C I S M , A N D A M E R I C AN L A W

1-51 (3 d ed. 1993) . 42. O n the backlash vot e and role of angry white males , see Morrow, Mad as Hell, supra not e 33; David Gates , White Male Paranoia, NEWSWEEK , Mar. 29, 1993 , at 48. 43. See Richard Delgado , Zero-Based Racial Politics: An Evaluation of Three Best-Case Arguments on Behalf of the Nonwhite Underclass, 7 8 G E O . L J . 1929(1990) . 44. O n some o f the cruelties committe d b y the early conquistadores , see BERNAL D I A Z C A S T I L L O , C O N Q U E S T , supra not e 28 ; on the Inquisition , see

Notes to Chapter 1

17 3

H. K A M E N , I N Q U I S I T I O N A N D SOCIET Y I N S P A IN I N THE SIXTEENTH A N D

SEVENTEENTH CENTURIE S (1985) ; o n a U.S . chapter , se e A. MILLER , The

Crucible, in COLLECTE D PLAY S (1957) .

45. Kohn , Between Bad and Good, Research Shows Believers No More Likely to Love Their Neighbor Than NonbeHevers, S.F . CHRONICL E & EXAMINER, Jul y 8, 1990, Thi s World , at 15 (summarizing variou s studie s of helping behavior). 46. Id. On the false piety of self-righteous belief , se e Peggy Davis, Law as Microaggression, 9 8 YALE L.J . 155 9 (1989). 47. O n the gap between ric h an d poor, se e Blacks Still Trail Whites in Wages, Boulder , CO , DAIL Y CAMERA , Apr . 30 , 1995 , a t 9A, col . 1 ; C H R O N I -

CLES, supra not e 1 , at ch. 1 (Appendix D). 48. O n this socioeconomi c theor y o f racism, see , e.g., J. KOVEL, WHIT E R A C I S M — A PSYCHOHISTOR Y 4 4 (1984) ; G O R D O N ALLPORT , T H E N A T U R E

OP PREJUDIC E 224-2 5 (25t h Anniversary Ed . 1979). 49. See, e.g., Robert Trivers , The Evaluation of Reciprocal Altruism, 4 6 Q. REV . BIOL. 3 (1979) ; B. M. DeWaal, The Chimpanzee's Sense of Social Regularity and Its Relation to the Human Sense of Justice, in THE SENS E OF JUSTICE: BIOLOGICA L F O U N D A T I O N S O F LAW 24 1 (Roge r D . Master s &

Margaret Gruter eds., 1992) . 50. See DERRIC K BELL , A N D WE A RE N OT SAVED: T H E ELUSIVE Q U E S T

FOR RACIA L JUSTIC E (1987 ) (o n the way whit e dislik e o f black s unite s working-class an d elite white s an d keeps th e forme r fro m challengin g the latter). 51. Derric k Bell , The Chronicle of the Space Traders, 4 2 RUTGERS L . REV. 1 (1990), 3 4 S T. LOUIS L . REV. 3 (1990 ) (sam e chronicl e i n slightl y revised for m wit h additiona l commentary) . See also Michae l Klarman , Brown, Racial Change, and the Civil Rights Movement, 8 0 V A. L. REV. 7 , 102-04 (1993 ) (on populism an d its evolution int o anti-civi l right s senti ment). 52. Richar d Delgado , Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, 198 5 Wis. L. REV. 1359; P A TRICIA WILLIAMS , T H E ALCHEM Y O F R A CE A N D RIGHT S 146-4 8 (1991) ;

Trina Grillo , The Mediation Alternative: Process

Dangers for Women, 10 0

YALE L.J . 1545(1991) .

53. CHRONICLES , supra not e 1 , at ch. 4. 54. See Richard Delgado , Enormous Anomaly! Left-Right Parallels in Recent Writing about Race, 9 1 COLUM. L . REV. 1547 (1991). 55. Henderson , Empathy, supra not e 14. 56. Her b Eastman , Speaking Truth to Power: The Language of Civil Rights Litigators, 10 4 YALE L.J . 763 (1995); Ward, Kinder, supra not e 14 , a t 946 (criticizin g this view as Utopian).

174 Notes

to Chapter 1

57. O n the difficulty battere d wive s hav e ha d in winning a legal defens e of nonimminen t provocatio n o r self-defense, se e Holly Maguigan , Battered Women and Self-Defense: Myths and Misconceptions in Current Reform Proposals, 14 0 U. P A . L. REV. 379 (1991). See also Luci e White , Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G., 38 BUFF. L . REV. 1 , 4, 29-52 (1990 ) (clien t surprise d attorne y by successfully arguin g for a novel theor y of relief, fo r the first time , at her own hearing). 58. 42 6 U.S. 229 (1976). 59. O n causation i n civil right s cases , see , e.g., City of Richmond v . J. A. Croson Co. , 10 9 S. Ct. 706 (1989); Firefighter s Loca l Unio n No . 178 4 v . Stotts, 46 7 U.S. 451 (1984); Daniel s v . Williams, 47 4 U.S. 327 (1986); D E R RICK BELL , N O T SAVED, supra not e 50 , at 170-73.

60. O n th e role o f the "BFOQ " (bon a fide occupationa l qualification ) i n civil right s law , see , e.g., M A C K A . PLAYER , FEDERA L L A W O F E M P L O Y M E N T D I S C R I M I N A T I O N 51-5 8 (1992) .

61. R.A.V . v. City of St. Paul, 11 2 S. Ct. 2538 (1992) . 62. O n this an d similar incident s an d thei r rol e i n justifying anti-hat e speech rules, see Richard Delgado, Campus Antiracism Rules: Constitutional Narratives in Collision, 8 5 N w. U. L. REV. 343, 348-58 (1991) . 63. O n this ironi c juxtaposition , se e Charles Lawrence , Cross Burning and the Sound of Silence: Antisubordination Theory and the First Amendment, 3 7 VILL. L . REV. 787 (1992). See also Mar i Matsuda , Public Response to Racist Speech: Considering the Victim's Story, 8 7 M I C H. L . REV. 232 0 (1989) (la w ofte n fail s t o tak e accoun t o f the injuries o f victim s o f hat e speech). 64. Lawrence , supra a t 787-95; 11 2 S. Ct. at 2540-51. 65. See R I C H A R D D E L G A D O E T AL., W O R D S T H A T W O U N D (1993 ) (o n

the wa y racist, assaultiv e speec h injure s it s victims). 66. E.g., H E N R Y L O U I S G A T E S E T AL., S P E A K I N G O F R A C E, S P E A K I N G

OF SE X (1994) (depictin g i n often terrifyin g fashio n th e parade o f horrible s likely to ensue if hate speec h rule s ar e enacted). 67. See Sharon Cairns , unpublishe d manuscrip t (1995 ) (o n file wit h author) (o n the way discourse rule s gover n show s of emotion). 68. Fo r a study o f these unwritte n rule s o f etiquette, se e B. Bogoch & B. Danet, Challenge and Control in Lawyer-Client Interaction, 4 T E X T 249 (1984); Bogoch , Power, Divorce, and Solidarity, 5 D I S C O U R SE & SOC' Y 65 (1994); Cairns, supra not e 67. 69. O n this risk , se e Peter Gabe l & Pau l Harris , Building Power and Breaking Images: Critical Legal Theory and the Practice of Law, 1 1 N.Y.U. REV. L . &. S o c. C H A N G E 36 9 (1982-83) .

70. See Eastman, supra not e 56 , at 765-72, 778-81 .

Notes to Chapter 1 17 5 71. Bell , Serving, supra not e 20 , a t 470-72 , 482-93 ; se e aiso Anthon y Alfieri, Practicing Community, 10 7 H A R V. L . REV. 1747 , 1751 (1994); Alfleri, White Knight (boo k review) , 10 8 H A R V . L . REV . 959 , 962-63 (1995 ) (urging that white s sta y out of leadership positions in civil rights movement) . 72. Eastman , supra not e 56 , at 765-72 ; M A R T H A M I N O W , P A R T I A L JUS TICE AN D M I N O R I T I E S , I N THE FAT E O F LA W 68-7 7 (Austin Sara t & Thoma s

Kearns eds., 1991 ) (on effacement o f minorities throug h the choice of story). 73. Pau l Finkelman , Not Only the Judge's Robes Were Black: AfricanAmerican Lawyers as Social Engineers (boo k review) , 47 STAN . L . REV. 16 1 (1994). 74. Id. at 166-69. 75. Richar d Delgado , Words That Wound: A Tort Action for Racial Insults, Epithets and Name-Calling, 1 7 H A R V. C.R.-C.L . L . REV. 133 (1982). 76. Catharin e MacKinnon, SEXUA L H A R A S S M E N T O F W O R K I NG W O M E N

(1979). 77. Ala n Freeman , Legitimizing Race Discrimination through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 6 2 M I N N . L. REV . 1049(1978) . 78. D A V I D A . J . R I C H A R D S , T H E R I G H T T O P R I V A C Y : G A Y S , L E S B I A N S ,

AND TH E C O N S T I T U T I ON (1991) .

79. McCleske y v . Kemp , 48 1 U.S. 279 (1987). See Randall Kennedy , McCleskey v . Kemp: Race, Capital Punishment, and the Supreme Court, 101 H A R V . L . REV. 138 8 (1988) .

80. Fo r a discussion o f recent casela w dealin g wit h victim-impac t state ments, se e David D . Friedman , Should the Characteristics of Victims and Criminals Count!: Payn e v . Tennessee and Two Views of Efficient Punishment, 3 4 B.C. L . REV. 731 (1993). 81. Fo r an overvie w o f som e o f thi s literature , se e Anthony Alfieri , Stances, 77 CORNELL L . REV. 1233 (1992). 82. E.g., Carrie Menkel-Meadow , Portia in a Different Voice: Speculations on a Woman's Lawyering Process, 1 BERK. WOMEN' S L.J . 3 9 (1985); Is Altruism Possible in Lawyering! 8 G A. ST . U. L. REV. 385 (1992). 83. E.g., G E R A L D L O P E Z , R E B E L L I O U S L A W Y E R I N G , supra not e 23 ; Re-

conceiving Civil Rights Practice: Seven Weeks in the Life of a Rebellious Collaboration, 77 G E O. L.J. 1603 (1989); Training Future Lawyers to Work with the Politically and Socially Disadvantaged: Anti-Generic Legal Education, 9 1 W. V A. L. REV. 305 (1989). 84. E.g., Clark Cunningham , A Tale of Two Clients: Thinking about Law as Language, 8 7 M I C H. L . REV . 245 9 (1989) ; The Lawyer as Translator, supra not e 29. 85. E.g., Anthony Alfieri , Practicing Community, supra not e 71 ; Reconstructive Poverty Law Practice: Learning Lessons of Client Narrative, 10 0

176 Notes

to Chapter 1

YALE L.J . 2107 (1991); The Ethics of Violence: Necessity, Excess, and Opposition (boo k review) , 9 4 C O L U M. L . REV . 172 1 (1994); White Knight, supra note 71. 86. E.g., Alfieri, Reconstructive, supra not e 85 ; Binnie Miller, Give Them Back Their Lives: Recognizing Client Narrative in Case Theory, 9 3 M I C H . L. REV . 485 (1994); White, Sunday Shoes, supra not e 57. 87. Her b Eastman , Speaking Truth, supra not e 56 , at 778-81. 88. Alfieri , Reconstructive, supra not e 85 , at 2118-21 , 2128-29 ; Ethics of Violence, supra not e 85 , at 1721-44 , 1749 , 1764 (we must "learn, " "un learn . . . " an d "relearn" bette r o r differen t approache s t o our clients and advocacy). 89. Alfieri , Ethics of Violence, supra not e 85 , at 1721-25, 1729 , 1733-36, 1749-50; see also Reconstructive, supra not e 85 , at 2130 (anothe r mea culpa about a different client , a Mrs. Celeste) . 90. Ethics of Violence, supra not e 85 , at 1731-33, 1743 , 1748 . 91. Bell , Serving Two Masters, supra not e 20 , at 470-72, 482-93. 92. Fo r othe r self-flagellation s an d confessions o f failure, se e Cunningham, Translator, supra not e 29 , at 1300 ("I was one of his oppressors. I was his lawyer") ; id. at 1325, 1328 , 1330; White, Sunday Shoes, supra not e 57 , at 45-50; Miller, Case Theory, supra not e 86 , at 569-70. 93. See also Miller , Case Theory, supra not e 8 6 (lawyer wante d clien t of color t o adopt a theory o f racism i n defending agains t a shoplifting charge, client resisted , realizin g thi s wa s a theor y tha t coul d no t win because the jury are more likel y t o believe th e shopowner an d the police); White, Sunday Shoes, supra not e 57 , at 33-37, 51 (author wante d clien t t o speak up , be more articulate an d well spoken) . 94. See L A W R E N C E T R I B E , A M E R I C A N C O N S T I T U T I O N A L L A W §§ 3-10 ,

3-11,3-14 (2 d ed. 1988) . 95. Zah n v . International Pape r Co. , 414 U.S. 291 (1974). 96. E.g., Eise n v. Carlisle & facquelin, 41 7 U.S. 15 6 (1974). 97. Marti n v . Wilks, 490 U.S. 755 (1989) (overruled by Civil Right s Act of 1991). 98. ELLI S C O S E , T H E R A G E O F A P R I V I L E G ED C L A S S (1993) . The middle -

or upper-incom e perso n o f color i s apt to have mor e contact s wit h white s and thu s mor e opportunitie s t o be the victim of discrimination. 99. See Interview, supra not e 2 ; see also volume s 3 Si 4 RACE T R A I T O R M A G A Z I N E (1994-95) . 100. See, e.g., 1 R A CE T R A I T O R (frontispiece) .

101. Interview, supra not e 2 , at 85; see also Edwar d H . Peeples, Thirty Years in Black and White, 3 R A CE T R A I T O R 34 , 45 (Spring 1994) . 102. Interview, supra

a t 84-85 . See also L O P E Z , REBELLIOU S LAWYER -

ING, supra not e 23 , at 24, 31-38, 50-51 , 55 , 73 (suggesting variou s measure s

Notes to Chapter 2 1 77 by whic h activis t lawyer s ca n identify mor e full y wit h th e client commu nity); Alfieri, Practicing Community, supra not e 71 , at 1762-63 (same) . 103. Interview, supra a t 84-8 5 ("s o lon g a s the white rac e exists , all movements agains t wha t is called 'racism ' will fail . Therefore , ou r aim is to abolish th e white race") ; see IAN H A N E Y LOPEZ , WHIT E B Y LAW (1995 ) (on

the social and legal construction of the white race). 104. Interview, supra, a t 84-86. 105. Id. at 85 (how to be a race traitor : si x ways t o fight bein g white) ; John Garvey, Family Matters, 4 RACE TRAITO R 23 , 24-29 (Winte r 1995) . 106. Interview, supra, a t 86; Editorial, When Does the Unreasonable Act Make Sense! 3 RACE TRAITO R 10 8 (Spring 1994) . 107. See Program, Critical Networks Conference: Race, Class, and Identity 4 (1995) (on file with author) . 108. Derric k Bell, Property Rights in Whiteness, in CRITICAL RAC E T H E ORY: T H E C U T T I N G EDG E (R . Delgado ed. , 1995) .

109. O n responsibility an d evasion, se e JEAN-PAUL SARTRE , Absolute Freedom, in BEIN G A N D N O T H I N G N E S S (1956) . See also LOPEZ , REBEL -

LIOUS LAWYERING , supra not e 23 , at 329; Alfieri, Reconstructive, supra note 85 , at 1750 (both authors callin g for mobilization, radica l identification , opposition, an d reconstruction a s alternative t o law practic e a s currentl y understood). 110. E.g., RALP H N A D E R , U N S A F E A T A NY SPEED : T H E D E S I G N E D - I N DANGERS O F THE A M E R I C AN A U T O M O B I L E (1972) .

111. O n the Poor People's March and King's planned rapprochement wit h the poo r community , se e D A V I D J . GARROW , BEARIN G TH E CROSS : M A R TIN LUTHE R K I N G , JR. , A N D THE SOUTHERN CHRISTIA N LEADERSHI P

CONFERENCE 575-62 4 (Firs t Vintage Books ed. 1988) . 112. Rober t Kennedy, the scion of a wealthy family, towar d the end of his life wen t t o California t o demonstrate solidarit y with th e farm workers, met with leaders of minority and poor communities, an d was present at the origi n of th e Poo r People' s Campaign . ARTHU R M . SCHLESINGER , JR. , ROBER T

KENNEDY A N D H IS TIME 790-91 , 846-47, 872-73 , 908, 914 (1978). 113. See Critical Networks, supra not e 107 , at 4. Notes to Chapter 2 1. Th e Professo r i s travelin g t o give a speec h h e promised t o give six months ago , which he now regret s having scheduled during deepest winter . 2. O n "Giannina," Rodrigo' s playwrigh t frien d an d life companion , see Richard Delgado, T H E RODRIGO CHRONICLES , chs . 3-7 (1995). 3. Regardin g Rodrigo' s LL.M . thesi s an d its various spin-of f writin g proj ects, see CHRONICLES, supra not e 2, at chs. 3-4.

178 Notes

to Chapter 2

4. See Derrick Bell , Racial Realism, 2 4 C O N N. L . REV. 36 3 (1992) [herein after Bell , Racial Realism] (puttin g forwar d th e "racial realist " vie w tha t African American s ar e unlikely t o make seriou s gain s i n our political and legal system , bu t that th e effort mus t nevertheles s b e made). Fo r earlier statements o f Bell's thesis , see , for example, Derric k A . Bell, Jr. , Brown v. Board o f Education and the Interest-Convergence Dilemma, 9 3 H A R V. L . REV. 51 8 (1980) [hereinafte r Bell , Interest-Convergence] (arguin g fo r a shif t in focu s fro m th e integration o f the races withi n th e educational syste m to the overal l improvement o f educational quality) ; Derrick Bell , Foreword: The Civil Rights Chronicles, 9 9 H A R V. L . REV . 4, 13 (1985) [hereinafte r Bell , Foreword] (usin g fantas y i n the form o f imagined chronicle s t o explore the myth tha t "racia l justic e ca n be realized withou t sacrificin g th e material and psychological reward s o f racial domination") . 5. See Alan D . Freeman , Race and Class: The Dilemma of

Liberal Re-

form, 9 0 YAL E L.J . 188 0 (1981) (reviewin g D E R R I C K A . BELL , J R . , R A C E , R A C I S M A N D A M E R I C AN L A W (2d ed. 1980)) .

6. See generally Joh n a . powell, Racial Realism or Racial Despair!, 2 4 C O N N . L . R E V . 533, 544 (1992) (arguin g tha t Bell' s racia l realism , whil e partly sound , i s nevertheles s excessivel y blea k an d calculated t o subdu e reform fervor) . 7. See Bell, Racial Realism, supra not e 4 , at 373 (declaring tha t "[e]ve n those herculea n effort s w e hail a s successful wil l produc e n o more tha n . . . short-lived victorie s tha t slid e into irrelevance") . 8. See, e.g., JOSEP H C A M P B E L L , T H E M A S KS O F G O D: P R I M I T I VE M Y-

THOLOGY (Vikin g Pres s 1970 ) (1959) (describin g ho w similar mythologica l symbols continu e t o reappea r i n differen t societies) ; JOSEP H CAMPBELL , M Y T H S T O LIVE B Y (1972) (examinin g th e way myths an d symbols creat e a firm bas e for the moral orde r of a society). 9. See Bell, Interest-Convergence, supra not e 4 , at 522-28. 10. See id. at 524 ("I contend tha t th e decision i n Brown . . . cannot be understood withou t som e consideratio n o f the decision's valu e t o whites"); see also D E R R I C K A . BELL , J R . , R A C E , R A C I S M A N D A M E R I C AN L A W 44-50

(3d ed. 1992 ) (elaborating on his theory). 11. See Bell, Racial Realism, supra not e 4 , at 363 (declarin g tha t "[r]acia l equality is , in fact, no t a realistic goal") . 12. See Richard Delgado , Derrick Bell and the Ideology of Racial Reform: Will We Ever Be Saved! 97 YALE L.J . 923, 93 0 n.28, 93 1 n.31 (1988) (boo k review) (deliverin g statistic s o n blacks' statu s i n th e United States) ; see also A N D R E W H A C K E R , T w o N A T I O N S : BLAC K A N D W H I T E , SEPARATE ,

H O S T I L E , U N E Q U A L (1992 ) (reporting further statistic s o n blacks). 13. See Mickey Kaus , The Work Ethic State: The Only Way to Break the Culture of Poverty, N E W REPUBLIC , Jul y 7 , 1986, at 22 (arguing tha t ther e

Notes to Chapter 2 1 79 exists a "cultur e o f poverty [whic h is ] largely a black culture") ; see also Mickey Kaus , Bastards, N E W REPUBLIC , Feb . 21, 1994 , at 16 (discussing work-oriented welfare plans for, among others, the black underclass culture) ; Workfare That Works, N E W REPUBLIC , Aug . 24, 1987, at 7-8 (examinin g welfare attempt s t o transform th e "culture o f poverty" an d the "culture of dependency"). See generally OFFIC E O F POLICY P L A N N I N G A N D RESEARCH , U.S. D E P ' T O F LABOR, T H E N E G R O FAMILY : T H E C A S E FO R N A T I O N A L

A C T I O N 5 (1965) ("[T]h e fundamenta l sourc e o f the weakness o f the Negro community at the present time . .. is the deterioration of the Negro family"). 14. See, e.g., Suzanna Sherry , The Forgotten Victims, 6 3 U. COLO. L . REV . 375, 376-8 0 (1993 ) (arguin g tha t th e race proble m i s largely solved , a t least on a formal level) . 15. See Richard Whitmire , "Major Crisis" for Black Children, DENVE R POST, Ma y 27, 1994 , a t 2A (quoting Maria n Wrigh t Edelman , presiden t of the Children's Defense Fund , as saying, "W e have a major black child crisis— the worst sinc e slavery") . 16. Fo r an extensive discussio n of the role of racial imagery , se e Richard Delgado & Jean Stefancic , Images of the Outsider in American Law and Culture: Can Free Expression Remedy Systemic Social Ills!, 77 CORNELL L. REV. 125 8 (1992) . 17. Cf. Delgado, Ever Saved!, supra not e 12 , at 923, 928-4 7 (discussin g Derrick Bell's "sombe r prognosis" of American race-remedy law). 18. See Bell, Racial Realism, supra not e 4 , at 373-79 (discussin g racia l realism, an d contending tha t "[b]lac k peopl e wil l neve r gai n full equalit y in this country.") . 19. Girardea u A . Spann, Pure Politics, 8 8 M I C H . L . REV . 1971, 199 2 (1990). 20. See Symposium, The Renaissance of Pragmatism in American Legal Thought, 6 3 S. CAL . L . REV. 1569 (1990). 21. See generally R O N A L D M . DWORKIN , LAW' S EMPIR E (1986 ) (dis -

cussing conceptions o f law as a stable, legitimate , an d binding moral force). 22. Th e Professor wa s thinkin g of the Greek sophist s a s well a s some of their more recent incarnations . See text immediately infra. 23. See PLATO , T H E REPUBLIC, reprinted in

1

T H E D I A L O G U ES O F

PLATO 591 , 603 (B. Jowett trans. , 1937 ) [hereinafte r DIALOGUES ] (describin g Thrasymachus's view tha t law is the will of the mighty). 24. See PLATO , T H E APOLOGY , reprinted in

1 DIALOGUES , supra, a t

418-20 (describin g ho w Socrate s reject s his friends' admonitio n tha t h e fle e his impendin g execution , o n the ground tha t doin g s o would weake n the legitimacy of the Athenian state). 25. See David Papke, The Black Panther Party's Narratives of Resistance, 18 V T. L. REV. 645, 67 0 (1994) (notin g tha t th e Panthers harbore d "n o dee p

180 Notes

to Chapter 2

respect fo r [the] law" and asserting tha t "th e poor . . . and oppressed ha d the right t o rewrite unjus t laws") . 26. See BELL , R A C E , R A C I S M , supra not e 4 , at 26-30 .

27. See id. at 9, 26-30. 28. See, e.g., Brown v . Board o f Educ, 34 7 U.S. 483, 495 (1954 ) (officia l segregation o f schoolchildren b y race violates th e constitutional guarante e of equal protectio n o f the law). 29. See Papke, supra not e 25 , at 662-71 (describin g th e Panthers' knowl edge of the law while contrastin g thei r cynica l attitud e towar d it). 30. See generally Richar d Delgado , Campus Antiracism Rules: Constitutional Narratives in Collision, 8 5 N w. U . L. REV . 34 3 (1991 ) (analyzin g college campu s rule s tha t prohibi t raciall y offensiv e speec h unde r th e Firs t and Fourteent h Amendments) . 3 1 . See D O N A L D L . BARLET T & JAME S B . STEELE , A M E R I C A : W H O

REALLY PAY S T H E TAXES? 39-4 8 (1994) . Concernin g th e wa y in whic h

deregulation an d favorable ta x treatmen t hav e aide d th e rich an d disadvan taged th e poor, se e generally Richar d Delgado , Inequality "From the Top": Applying an Ancient Prohibition to an Emerging Problem of Distributive Justice, 3 2 UCLA L . REV. 100 , 129-32 (1984 ) (discussin g lega l approache s to governmental favoritis m towar d it s friends) . 32. See C H R O N I C L E S , supra not e 2 , at ch. 5 (pointing ou t a new trend in law school s towar d "abstract , vaguel y aspirationa l teaching, " whic h i s also found i n legal theor y i n the form o f "civic republicanism") . 33. Antoni o Gramsci , a n Italian intellectual , wrot e abou t socia l critiqu e and th e relations amon g classe s o f people. See A N T O N IO G R A M S C I , SELEC TIONS FRO M TH E P R I S O N N O T E B O O K S passim (Quenti n Hoar e & Geoffre y

N. Smit h trans . & . eds., 1971) . 34. See generally R A L P H N A D E R , U N S A F E A T A N Y S P E E D: T H E D E S I G N E D - I N D A N G E R S O F T HE A M E R I C A N A U T O M O B I L E (1972 ) (discussin g

the reluctanc e o f the automobile industr y t o commi t resource s t o safet y research an d design). 35. Fo r a discussion o f the problem o f the "indeterminat e plaintiff, " see Richard Delgado , Beyond Sindell : Relaxation of Cause-in-Fact Rules for Indeterminate Plaintiffs, 7 0 C A L. L. REV. 881 (1982). 36. O n the high cost s o f litigation, see , for example, Joh n E . Morris, Cut the Going Rate, A M . LAW. , Sept. 1993 , at 5; Gary Taylor , Counsel to Firms Goes In-House: Legal Costs Are Leading Firms, Like Their Clients, to Look Inside for Advice, N A T ' L L.J. , July 18 , 1994, at A l. 37. See H E N RY KISSINGER , D I P L O M A C Y 59-7 7 (1994 ) (attributin g mod -

ern nations ' pursuit o f self-interest t o a tradition begu n by Richelieu's raiso n d'etat, an d stating tha t th e post-Cold Wa r challenge is to restrain nationalis tic assertion s o f self-interest) ; Z B I G N I E W BRZEZINSKI , O U T OF C O N T R O L :

Notes to Chapter 2 18 1 GLOBAL T U R M O I L O N TH E EV E O F TH E TWENTY-FIRS T CENTUR Y 8 7 -

101 (1993 ) (assertin g tha t th e distinctio n betwee n exclusivel y foreig n an d exclusively domesti c issues has blurred). 38. See, e.g., DIPLOMACY , supra a t 59-77 ; N I C C O L O MACHIAVELLI

,

THE PRINC E 79-8 4 (Hil l Thompson trans. , Heritage 1954 ) (1513). 39. O n morality a s a means o f manipulating th e masses, se e FRIEDRIC H W. NIETZSCHE , BEYON D G O O D A N D EVI L 103-31 , 10 6 (Mariann e Cowa n

trans., Gatewa y ed . 1955) (1907 ) ("Wha t i s essential an d invaluable i n every system of morals, is that it is a long constraint"); FRIEDRICH W . NIETZSCHE , T H U S SPAK E ZARATHUSTR A 5 1 (A . Till e trans. , J . M . Den t 8k Sons 1958 )

(1883) ("Joy in the herd is older than joy in the J: and while good conscience is called herd, only the bad conscience saith /") . 40. See, e.g., Richard Delgado, Zero-Based Racial Politics: An Evaluation of Three Best-Case Arguments on Behalf of the Nonwhite Underclass, 7 8 GEO. L.J . 1929, 1940-44 (1990 ) (arguin g tha t a zero-base d critica l analysi s indicates tha t th e nonwhite poo r shoul d conside r alignin g themselve s wit h the principled Right of the Republican Party). 41. See CHRONICLES , supra not e 2 , a t ch . 8 (discussin g ho w societ y virtually equates crim e and the black underclass). 42. See CHRONICLES , supra not e 2 , at ch. 3 (discussin g ho w American society exclude s blacks both from the economy an d from networks of love). 43. See, e.g., Faye Crosby et al., Recent Unobtrusive Studies of Black and White Discrimination and Prejudice: A Literature Review, 8 7 PSYCHOL . BULL. 546 , 548-49 (1980 ) (describin g th e shoppin g ba g experiment, whic h found tha t white s ten d to give hel p to people o f their own race); Stephen G. West e t al. , Helping a Motorist in Distress: The Effects of Sex, Race, and Neighborhood, 3 1 J . PERSONALIT Y & S o c . PSYCHOL . 691 , 693-94 (1975 ) (discussing th e broken-down motoris t experiment , whic h foun d tha t blac k victims wer e helpe d faste r i n blac k neighborhood s an d that whit e victim s were helped faster in white neighborhoods) . 44. See, e.g., Anthony Appiah, The Uncompleted Argument: Du Bois and the Illusion of Race, 1 2 CRITICA L INQUIR Y 21 , 21-22 (1985) (notin g tha t aside fro m visibl e difference s i n skin, hair , an d bone, "ther e are few genetic characteristics to be found in the population of England that ar e not found in similar proportion s i n Zaire o r in China; an d few too (though more ) whic h are found in Zaire but not in similar proportions in China or England"). 45. O n the socia l constructio n o f race , se e IA N F . HANE Y LOPEZ , W H I T E

BY LA W (1995). 46. See Delgad o & Stefancic , supra not e 16 , a t 1260-62 , 1275-7 6 (explaining that the use of images serve s both to reassure those who dissemi nate them , an d t o legitimat e thei r positio n vis-a-vi s thos e wh o ar e demonized).

182 Notes

to Chapter 2

47. Fo r a discussion of some of these conservative themes , se e CHRONI supra note 2, at ch. 1 (noting that conservative authors currently argue that cultur e need not change direction to survive, but rather must tr y harder at the things tha t wer e done before); Richar d Delgado, Enormous Anomaly! Left-Right Parallels in Recent Writing about Race, 91 COLUM . L . REV. 1547 , 1548 (1991) (book review) (arguing that left- an d right-leaning scholars are in substantial agreemen t wit h regar d t o what i s wrong wit h th e liberal civi l rights program). 48. See Delgado & Stefancic, supra note 16 , at 1262-67, 1275-76, 1281. 49. See id. at 1281-82. 50. See Lucy K . Hayden, The Poetry of Phillis Wheatley, in MASTER CLES,

PIECES O F AFRICAN-AMERICA N LITERATUR E 45 1 (Fran k N . Magil l ed. ,

1992). 51. See City o f Richmond v . J. A. Croson Co. , 488 U.S. 469, 52 1 (1989) (Scalia, J. , concurring ) ("[0]nl y a socia l emergenc y risin g t o th e leve l of imminent danger to life and limb . .. can justify a n exception to the principle embodied i n th e Fourteenth Amendmen t tha t ou r Constitution i s color blind" (quotin g Pless y v . Ferguson , 16 3 U.S. 537, 559 (1896) (Harlan , J. , dissenting))); Lin o A . Graglia, Race-Conscious Remedies, 9 HARV . J.L . & PUB. POI/ Y 83 , 83 (1986) ("It should be obvious that granting preferences to some individual s o n the basis o f race canno t b e justified . . . as a means of remedying disadvantages suffered b y other individuals"). 52. Fo r a discussion o f these an d other form s o f turnabout, se e Richard Delgado & Jean Stefancic, Imposition, 3 5 W M. & MARY L . REV. 102 5 (1994). 53. 34 7 U.S. 48 3 (1954). 54. See BELL , RACE , RACISM , supra note 4 , at 1-71 ; Bell, Interest-Convergence, supra note 4, passim-, see also Richard Delgad o 8k Jean Stefancic , Brown v . Board o f Education and the Reconstructive Paradox, 36 W M. 8k M A R Y L . REV . 547(1994) . 55. See Bell, Interest-Convergence, supra not e 4 , at 51 8 ("today, mos t black childre n atten d public schools tha t ar e both racially isolated an d infe rior" ); Michae l J . Klarman , Brown , Racial Change, and the Civil Rights Movement, 8 0 VA. L . REV. 7, 12 (1994) ("de fact o schoo l segregatio n i n all large urban school districts has intensified sinc e the late 1960s"). 56. See, e.g., Milliken v . Bradley, 41 8 U.S. 717, 745 (1974 ) (holdin g tha t "without a n interdistrict violation and interdistrict effect , ther e is no constitutional wrong calling for an interdistrict remedy"). 57. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 37 (1973). 58. See id. at 26-28; James v. Valtierra, 402 U.S. 137 , 141-43 (1971). 59. See generally HACKER , supra not e 12 , at 170-7 8 (describin g how schools have failed t o serve black children well).

Notes to Chapter 2 18 3 60. See Bell, Interest-Convergence, supra not e 4 , a t 524 (stating tha t Brown gav e credibilit y t o the United States ' struggl e fo r democracy i n th e Third World); Mary L. Dudziak, Desegregation as a Cold War Imperative, 4 1 STAN. L . REV. 61, 63 (1988) (explainin g tha t "effort s t o promote civi l right s within th e United State s wer e consisten t with , an d important to , the more central U.S. mission of fighting world communism") . 61. See Bell, Foreword, supra not e 4 , at 66 (discussing bot h th e importance of presenting a positive American racial image to the Third World after World Wa r n an d the effect o f this policy) ; cf. Bell, Racial Realism, supra note 4 , at 372 (discussing , i n light o f the Clarence Thoma s confirmatio n hearings, "ho w frequentl y i n American histor y Black s becam e th e involuntary pawns in defining an d resolving society's seriou s social trends") . 62. See Dudziak, supra not e 60 , at 98-112 (discussin g th e State Depart ment's attempt s at "international impressio n management") . 63. O n this phenomenon , see generally ROBER T J . LIFTON , T H O U G H T REFORM A N D THE PSYCHOLOGY O F TOTALIS M 43 9 (1961) (discussin g ho w

a "coerciv e approac h t o changing people " coul d resul t i n "'identificatio n with th e aggressor"' (quotin g A N N A FREUD , T H E EG O A ND TH E M E C H A -

NISMS O F DEFENC E 11 7 (Cecil Baine s trans. , 1946))) ; Brun o Bettelheim , Individual and Mass Behavior in Extreme Situations, 3 8 J. ABNORMAL & Soc. PSYCHOL . 417 , 447-51 (1943 ) (describin g th e tendency o f prisoners in German concentratio n camp s durin g the late 1930 s to adopt Gestap o value s as thei r own) ; Crai g Hane y e t al., Interpersonal Dynamics in a Simulated Prison, 1 INT'L J . CRIMINOLOG Y & PENOLOG Y 69 , 95 (1973 ) (notin g tha t

prisoners in a simulated priso n stud y "side d wit h th e guards agains t a solitary fellow prisoner") . 64. O n the life and thought of the great singer-actor-athlete, see generally M A R T I N B . D U B E R M A N , P A U L ROBESO N (1988) .

65. O n the life an d thought of W. E. B. Du Bois, see generally W . E. B. Du Bois, T H E AUTOBIOGRAPHY O F W. E. B. DU BOIS (1968 ) [hereinafte r Du B o i s , AUTOBIOGRAPHY] ; W . E . B . D U BOIS , T H E SOULS O F BLACK FOL K

(1973). 66. See Du Bois, AUTOBIOGRAPHY , supra, a t 394-95 (explainin g tha t Du Bois' s statu s was emasculated t o the point tha t "colore d children cease d to hea r hi s name") ; M A N N I N G MARABLE , W . E . B. D U BOIS: BLAC K R A D I -

CAL DEMOCRA T 171-7 5 (1986 ) (discussin g D u Bois's remova l fro m the NAACP). 67. See MARABLE , supra, a t 173 (noting that NAACP leader s felt tha t the organization wa s "vulnerabl e t o charges tha t it was a 'Communist organiza tion' "). I am grateful t o Peter Jon Perla for bringing to my attention som e of the sordi d infightin g tha t too k plac e i n black leadershi p circle s durin g thi s

184 Notes

to Chapter 3

period. See Peter } . Perla, Fro m Lef t t o Center: Th e Appropriation o f AntiCommunist Rhetori c by the Black Pres s and Leading Black Opinion-Makers , 1946 throug h 1948 , at 95-11 8 (Apr . 1 , 1992 ) (unpublished honor s thesis , University o f Colorado (Boulder) ) (discussin g th e downfall o f Du Bois and Robeson in the NAACP). 68. See MARABLE, supra not e 66, at 201 (notin g that D u Bois was invite d to atten d program s an d hand ou t awards at ceremonies); Perla , supra, a t 113 18 (describin g D u Bois's expulsio n an d subsequent retur n a s co-chairman of the Counci l o n African Affairs) . Notes to Chapter 3 1. See R I C H A R D D E L G A D O , T H E R O D R I G O C H R O N I C L E S , ch . 1 (1995).

2. Fo r more o n the "innocen t white " concern , see , e.g., Sheet Meta l Workers Int' l Ass' n v . EEOC, 47 8 U.S. 421, 500 (1986) (Rehnquist , J. , dissenting) (reasonin g tha t th e relief provide d b y § 706(g) of Title VI I does not extend t o victims who have not suffered discriminatio n becaus e relie f woul d come "a t the expense o f innocent whit e workers") ; Regent s o f the Univ. of Cal. v. Bakke, 43 8 U.S. 265, 29 8 (1978) (pluralit y opinion ) (arguin g tha t i t is unfair t o compel "innocent " peopl e t o remedy pas t discriminatio n tha t the y did not cause). See also Lind a S . Greene, Twenty Years of Civil Rights: How Firm a Foundation!, 3 7 RUTGERS L . REV . 707 , 714-31 (1985 ) (tracin g the development o f "innocent white " an d similar narrative s i n recent jurispru dence). 3. See Richard Delgad o & Jea n Stefancic , The Social Construction of Brown v . Board of Education: Law Reform and the Reconstructive Paradox, 36 W M . & . MARY L . REV. 547 (1995); Duncan Kennedy , A Cultural Pluralist Case for Affirmative Action in Legal Academia, 199 0 DUKE LJ . 705 (answer ing variou s objection s t o the use of affirmative actio n i n law school s and putting forwar d a cas e fo r affirmativ e actio n base d o n institutiona l self interest an d political fairness) ; Thoma s Ross , Innocence and Affirmative Action, 4 3 V A N D. L . REV. 297 (1990) (critiquin g th e argument tha t affirma tive action i s unfair t o innocent whites) . 4. Work s questionin g academia' s embrac e o f multiculturalis m includ e A L A N B L O O M , T H E C L O S I N G O F T H E A M E R I C AN M I N D 347-5 6 (1987) ; D I N E S H D ' S O U Z A , ILLIBERA L E D U C A T I O N : T H E P O L I T I CS O F R A CE A N D SEX O N C A M P US 1 3 (1992) ; E . D. H I R S C H , C U L T U R A L L I T E R A C Y 1 8 (1987) .

See also R O G E R K I M B A L L , T E N U R E D R A D I C A L S 6 3 (1990 ) (arguin g tha t

support amon g universit y professor s fo r multiculturalism i s "anticultural " because it abandons traditiona l teachin g methods i n the humanities). 5. See D ' S O U Z A, supra, a t 231-42. 6. Id. at 132-56.

Notes to Chapter 3 18 5 7. See, e.g., Marjori e Heins, Banning Words: A Comment on "Words That Wound/' 1 8 HARV . C.R.-C.L . L . REV . 585 , 59 2 (1983 ) (prominen t ACL U attorney arguin g agains t hat e speec h codes) ; Nadin e Strossen , Regulating Racist Speech on Campus: A Modest Proposal!, 199 0 DUK E L.J . 484 , 49 0 (presenting an argument b y the current national president o f the ACLU that restrictions on hate speech be narrowly drawn). 8. O n Rodrigo' s perio d i n Italy , se e CHRONICLES , supra not e 1 , a t chs. 1 , 2. 9. Henr y Loui s Gates , Jr. , Let Them Talk, NE W REPUBLIC , Sept . 20 , 1993, a t 37 (cover story). 10. See Richar d Delgad o & Jean Stefancic , Scorn, 35 W M . & MAR Y L . REV. 1061 , 1062-63, 1090-98 (1994) (arguing that powerful institution s suc h as the Suprem e Cour t shoul d reserve their use of sarcasm for th e "hig h an d mighty" and refrain from using such a tone with the weak). 11. See, e.g., Richard Delgado, Campus Antiracism Rules: Constitutional Narratives in Collision, 8 5 Nw . U . L . REV . 343 , 38 7 n.35 4 (1991 ) (citin g sources indicatin g black s ar e droppin g ou t o f white-dominate d school s o r enrolling in all-black colleges). 12. O n th e "seamles s web " argument , se e Richar d Delgad o & Davi d Yun, The Neoconservative Case against Hate-Speech Regulation —Lively, D'Souza, Gates, Carter, and the Toughlove Crowd, 47 VAND. L . REV . 180 7 (1995). 13. Wit h th e ai d o f decontextualization , pair s lik e th e followin g ca n b e made to seem to stand on a similar footing: the right of a Southern legislature to fly a Confederate fla g and the right of a Northern state to celebrate Martin Luther King Day; the right of a bigot to hurl a racial epithet and that of black friends t o use the smilin g greeting "Hi , nigger"; th e right o f black student s to form a support organization and that of whites to form a whites-only club. 14. See, e.g., Regents o f th e Univ . o f Cal . v . Bakke , 43 8 U.S . 265 , 28 4 (1978) (quotin g Unite d State s v . Associate d Press , 5 2 F . Supp . 362 , 37 2 (S.D.N.Y. 1943) (Hand, J.)). 15. O n resourc e attractor s i n th e theor y o f distributiv e justice , se e Mi chael H . Shapiro , Who Merits MeriU Problems in Distributive Justice and Utility Posed by the New Biology, 48 S. CAL. L . REV. 318, 344-47 (1974). 16. See Thomas G. Gee, Race-Conscious Remedies, 9 HARV. J.L . & PUB . POL'Y 6 3 (1986) (arguin g that quota s sea t unqualifie d people , givin g rise t o inefficiency); Lin o A . Graglia , Race-Conscious Remedies, 9 HARV . J.L . & PUB. POL' Y 83 , 86 (1986) (rejecting race-conscious remedies and contendin g that the y sometime s resul t i n qualifie d white s bein g denie d admissio n t o elite colleges). 17. O n m y youn g friend' s undergraduat e an d la w schoo l history , se e CHRONICLES, supra note 1 , at chs. 1, 2, 5.

186 Notes

to Chapter 3

18. See Symposium , The Critique of Normativity, 13 9 U. P A . L. R E V . 801 (1991 ) (containin g article s b y Pierr e Schlag , Frederic k Schauer , Steve n Winter, Fran k Michelman , Margare t Jan e Radin, an d the present author) . 19. Richar d Delgado , Norms and Normal Science: Toward a Critique of Normativity in Legal Thought, 13 9 U. P A. L. REV. 933, 956 (1991). 20. See Lesli e G . Espinoza, The LSAT: Narratives and Bias, 1 A M. U . J. G E N D E R & L . 121 , 127-38 (1993 ) (arguin g tha t th e LSAT i s biased becaus e the readin g passage s evok e emotiona l response s fro m minoritie s an d women). 21. Th e chitlin s tes t examine s th e test-taker' s familiarit y wit h matter s that ar e common knowledg e i n black an d inner-city culture . 22. C H R O N I C L E S , supra not e 1 , at ch. 1. 23. Id. 24. See 4 2 U.S.C. § 2000(a) , (h ) (1964) (Civi l Right s Ac t o f 1964 , which barred discriminatio n i n hiring, education , housing , an d other areas) . 25. O n th e thesi s tha t forma l rule s an d procedure s ofte n ca n serv e t o minimize prejudice , se e Richar d Delgad o e t al. , Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, 198 5 Wis. L . REV . 1359, 1400. See also Trin a Grillo , The Mediation Alternative: Process Dangers for Women, 10 0 YALE L.J . 1545 , 1586-88 (1991 ) (applyin g similar thesi s t o divorce mediation) . 26. I am grateful t o Duncan Kenned y fo r this example . 27. See Richar d Delgado , Shadowboxing: An Essay on Power, 77 C O R NELL L . R E V . 813 , 823-2 4 (1992) ; see also C A T H A R I N E A . M A C K I N N O N , F E M I N I S M U N M O D I F I E D : D I S C O U R S E S O N L I F E A N D L A W 50-5 1 (1987 )

(discussing th e cultural powe r me n possess vis-a-vi s women) ; Lis a Ikemoto , The Code of Perfect Pregnancy: At the Intersection of the Ideology of Motherhood, the Practice of Defaulting to Science, and the Interventionist Mindset of Law, 5 3 O H IO S T . L.J. 1205, 1284-8 5 (1992) . 28. See generally Chandle r Davidson , Affirmative Action in Undergraduate Admissions: The Experience at Rice, 2 R E C O N S T R U C T I O N 4 5 (1994 ) (discussing th e use of quota s an d preferences i n contemporar y elit e institu tions of higher learning) . 29. Id. at 47-50. 30. See generally Ala n Grob , Geography: The Invisible Preference, 2 R EC O N S T R U C T I O N 5 5 (1994) .

31. O n normativit y a s a too l fo r rationalizin g outrigh t cruelty , se e Delgado, Normal Science, supra not e 19 ; Pierre Schlag , Normative and Nowhere to Go, 4 3 S T A N . L . REV . 167 , 18 6 (1990) .

32. See Washington v . Davis, 42 6 U.S. 229, 246, 250 (1976) (holdin g tha t some relationshi p betwee n objec t o f testin g an d goal s o f polic e trainin g program satisfie s Constitution , despit e disparate impac t o n black applicants) .

Notes to Chapter 3 18 7 33. See, e.g., BLOOM, supra not e 4, at 336-47; D ' S O U Z A , supra not e 4, at 59-68, 94-122 , 157-67 . 34. See CHRONICLES, supra not e 1 , at ch. 6. 35. Id. 36. O n the role of these and other mainstream narratives in confining an d resisting change , se e Richard Delgad o & Jean Stefancic , Norms and Narratives: Can fudges Avoid Serious Moral Errorl, 6 9 TEX. L. REV. 192 9 (1991) (exploring th e particular situatio n o f judges); Ikemoto, supra (presentin g the narrative of the perfect mother) . 37. See Richard Delgado, Comment , Beating Them at Their Own Game, 1 RECONSTRUCTIO N 121 , 121-22 (1992 ) (reviewin g STEPHE N CARTER , R E FLECTIONS O F AN AFFIRMATIVE A C T I O N BAB Y (1991)) .

38. See, e.g., City of Richmond v . J. A. Croson Co. , 488 U.S. 469 , 498-99 (1989) (findin g n o redressable discriminatio n evidence d i n city's histor y of awarding constructio n contract s eve n thoug h black s receive d onl y 0.67 % of prime construction contract s in a city approximately 50 % black); McCleskey v. Kemp , 48 1 U.S. 279, 287, 297-99 (1987 ) (findin g n o discrimination i n a state practice tha t resulte d in a disparity of greater than four to one in racial sentencing patterns). 39. See generally Vick i Schult z & Stephe n Petterson , Race, Gender, Work, and Choice: An Empirical Study of the Lack of Interest Defense in Title VII Cases Challenging fob Segregation, 5 9 U. C H I. L. REV. 1073 (1992 ) (analyzing judicia l response s t o arguments tha t racia l an d sexual inequalit y in employmen t reflec t a minority group' s lac k o f interest i n advancemen t rather than a pattern of discrimination). 40. Why a Hispanic Heads an Organization Called U.S. English, HEMI SPHERES, Sept . 1994 , at 42.

41. Id. 42. Id. 43. CHRONICLES , supra not e 1 , at ch. 1. 44. Id. 45. See CHRONICLES, supra not e 1 , at chs. 1 , 3. 46. Shapiro , supra not e 15 , at 319-23. 47. Id. at 322-23. 48. See id. (describin g th e role o f resource-attractors i n economic and distributive theory) . 49. See generally STEPHE

N JA Y G O U L D, T H E MISMEASURE O F M A N

(1981). 50. STANLE Y FISH , THERE' S N O S U C H T H I N G A s FRE E SPEEC H ( A N D IT'S A G O OD T H I N G , T O O ) 6 3 (1994) .

51. Id. at 63-64. 52. Id. at 63.

188 Notes

to Chapter 3

53. Id. at 62-64. 54. Id. at 64, 81,85-86 . 55. See id. a t 4, 8-10, 85 . 56. JARE D T A Y L O R , PAVE D W I T H G O O D I N T E N T I O N S : T H E FAILURE OF R A C E R E L A T I O N S I N C O N T E M P O R A RY A M E R I C A (1994) .

57. Charle s V . Zehren, Changing of the Species!, N E W S D A Y , Jul y 14, 1994, a t A4. 58. A R T H U R S C H L E S I N G E R , J R . , T HE D I S U N I T I NG O F A M E R I C A : R E FLECTIONS O N A M U L T I C U L T U R AL S O C I E T Y (1991) .

59. Id. at 10-12, 71 , 126-29. 60. Id. at 13-14. 61. M A D I S O N G R A N T , T H E P A S S I N G O F T H E G R E A T R A C E O R T H E

R A C I A L BASI S O F E U R O P E AN H I S T O R Y (1920) ; see F I S H , supra not e 50 ,

at 81-8 6 (discussing thi s an d othe r earl y book s soundin g th e nativis t theme). 62. FISH , supra, a t 12-13 , 81 , 83-86 (analogizin g curren t assertio n tha t multiculturalism introduce s barbaris m int o th e educational curriculu m t o similar claim s b y those lik e Madiso n Grant) ; Abigai l M . Thernstrom , Bilangual Miseducation, C O M M E N T A R Y , Feb . 1990, at 44 (discussing increase d emphasis by states on bilingual education) . 63. L A W R E N C E A U S T E R , T H E P A TH T O N A T I O N AL S U I C I D E : A N ESSA Y O N I M M I G R A T I O N A N D M U L T I C U L T U R A L I SM (1990) .

64. Som e o f these statute s includ e th e Immigration Refor m an d Control Act o f 1986 , P.L. 99-603, 10 0 Stat. 3359 , Nov . 6, 198 6 (offering legalize d immigrant statu s t o undocumented alien s wh o ha d arrived befor e Januar y 1, 1982), an d the Immigration Ac t of 1990 , P.L . 101-649, 10 4 Stat. 4978 , Nov. 29, 199 0 (permitting an overall increase in immigration fro m al l countries). 65. R I C H A R D B R O O K H I S E R , T H E W AY OF T HE W A SP (1991) . 66. Id. a t 29-39 ; see also R I C H A R D J . H E R R N S T E I N & C H A R L E S M U R RAY, T H E BELL C U R V E : I N T E L L I G E N C E A N D C L A SS S T R U C T U R E I N A M E R I -

CAN LIF E (1994 ) (warnin g o f split i n American societ y alon g IQ-base d clas s lines). 67. H E N R Y P R A T T F A I R C H I L D , T H E M E L T I NG P O T M I S T A KE (1926) ; see also H E N R Y P R A T T F A I R C H I L D , R A C E A N D N A T I O N A L I TY A S F A C T O RS I N A M E R I C A N LIF E (1947) . 68. C A R L C A M P B E L L B R I G H A M , A

STUD Y O F AMERICA N INTELLI -

GENCE (1923) .

69. FISH , supra not e 50 , at 85-86. 70. See id. at 87 (making simila r point) . 71. C H R O N I C L E S , supra not e 1 , at ch. 1 ; see also Lind a S . Greene, The New NCAA Rules of the Game: Academic Integrity or Racism!, 2 8 S T . L O U I S U . L.J. 10 1 (1984) (discussing black athlete s in college sports) .

Notes to Chapter 4 18 9 72. See generally France s Le e Ansley, Stirring the Ashes: Race, Class, and the Future of Civil Rights Scholarship, 7 4 CORNELL L . REV . 993 (1989) (arguing tha t issue s o f race an d clas s ar e largel y intertwine d an d mus t be considered togethe r whe n addressin g affirmativ e actio n policies) ; Joh n O. Calmore, Exploring the Significance of Race and Class in Representing the Black Poor, 6 1 O R. L. REV. 201 (1982) (suggesting tha t pligh t o f black poo r is consequence o f both rac e and class). Notes to Chapter 4 1. See ch. 3 this volume . 2. See, e.g., K E N N E T H K A R S T , L A W ' S P R O M I S E , L A W ' S E X P R E S S I O N : V I S I O N S O F P O W ER I N T HE P O L I T I C S O F R A C E, G E N D E R , A N D R E L I G I O N

(1993). 3. E.g., D I N E S H D ' S O U Z A , ILLIBERA L E D U C A T I O N (1992 ) (critiquin g

multiculturalism an d diversity on four universit y campuses) . 4. E.g., Podberesky v . Kirwan, 38 F. 3d 147 (4th Cir. 1994) . 5. ILLIBERA L E D U C A T I O N , supra not e 3 .

6. Id. 7. PROMISE , supra not e 2, at 14-20, 58-65, 182-87 . 8. Id. at 137-39. 9. Id. at 28, 147-48 , 154 , 158 . 10. Id. at 148 , 150, 154-56 , 159-60 . See also DENVE R P O S T , NOV . 22 , 1994, a t 9A (full-page advertisemen t urgin g a national da y of prayer). 11. PROMISE , supra not e 2, at 31-56. 12. Id. at 27-28, 47-48, 69, 90-94 , 103-06 . 13. See R I C H A R D D E L G A D O , T H E R O D R I G O C H R O N I C L E S , ch . 8 (1995).

14. Eri c Schmitt , GOP Would Give Pentagon Money It Didn't Request, N.Y. T I M E S , Jul y 5 , 1995 , at A l ; Arthur Hoppe , Private Drab Finds the Enemy, S.F . C H R O N ., Jul y 14 , 1995 , at A27, col. 1. 15. O n these an d other manifestation s o f the new nativism , se e T HE RIS E OF LATTER-DA Y N A T I V I S M (Jua n Perea, ed., forthcoming 1996) . 16. See N E W T G I N G R I C H , C O N T R A C T W I T H A M E R I C A (1994 ) (book -

length treatmen t o f Republican Party' s agend a for change). 17. See infra thi s chapter . 18. PROMISE , supra not e 2 , at 139 ; House Approves Deep Cuts in Cultural Funds, DENVE R P O S T , Jul y 19 , 1995, at 7A. 19. La z discussed affirmativ e actio n wit h his two friends o f color in ch. 3, this volume . 20. Fo r discussion o f utilitarian (forward-looking ) an d reparations-base d (backward-looking) justification s fo r affirmative action , se e Richard Delgado , The Imperial Scholar: Reflections on a Review of Civil Rights Literature,

190 Notes

to Chapter 4

132 U. P A . L. REV. 561, 570 (1984); Richard Wasserstrom , Racism, Sexism, and Preferential Treatment: An Approach to the Topics, 2 4 UCLA L . REV . 581 (1982) . 21. See, e.g., Thomas Sowell , Even Some Liberals Are Having Doubts, A T L A N T A J . A N D C O N S T . , Feb . 22 , 1995, at A12 ; Thoma s Sowell , The Word, FORBES , Apr . 10 , 1995, at 61.

U

Q"

22. E.g., Sindel l v. Abbott Laboratories , 2 6 Cal. 3d 588, 607 P. 2d 924, 163 Cal. Rptr . 132 , cert, denied, 44 9 U.S. 912 (1980). ("D.E.S. " decision) ; Curlender v . Bioscience Laboratories , 10 6 Cal. App. 3d 811, 16 5 Cal. Rptr. 477 (1980) ("wrongful life " decision) . 23. Washingto n v . Davis, 426 U.S. 222 (1976); City of Memphis v . Greene , 451 U.S. 100(1981) . 24. E.g., Davidson v . Cannon, 47 4 U.S . 344, 347-48 (1986) ; Daniel s v . Williams, 47 4 U.S. 327, 332-3 3 (1986) ; see Mark S . Brodin, The Standard of Causation in Mixed-Motive Title VII Actions, 8 2 C O L U M. L . REV . 292, 29293,302-10(1982). 25. Cit y of Richmond v . Croson, 48 8 U.S. 469 (1989). 26. O n the role o f the "bon a fide occupationa l qualification " i n antidiscrimination law , se e N O R M A N V I E I R A , C O N S T I T U T I O N A L C I V I L R I G H T S

31-33 (2 d ed. 1990) . 27. E.g., Gleitman v . Cosgrove, 49 N.J. 22, 227 A. 2d 689 (1967) . 28. E.g., Curlender v . Bioscience Laboratories , 10 6 Cal. App. 3d 811, 16 5 Cal. Rptr. 477(1980) . 29. E.g., Berman v . Allan, 8 0 N.J. 421, 404 A. 2d 8 (1979). 30. Dougla s Martin , When Holocaust Lives with Parents, N.Y . T I M E S , Apr. 29 , 1995 , A27. 31. Charle s L . Black, My World with Louis Armstrong, 6 9 YALE REV . 14 5 (1979); Further Reflections on the Constitutional Justice of Livelihood, 8 6 C O L U M . L . REV. 1103 (1986) (hereinafter Livelihood). 32. Ever y Souther n stat e a t on e time ha d laws prohibitin g educatin g slaves. R I C H A R D K L U G E R , S I M P L E J U S T I C E : T H E H I S T O RY o f BROWN v. BOARD of

EDUCATION A N

D BLAC K A M E R I C A N S

7

S T R U G G L E FO R E Q U A L -

ITY 157-59(1975) . 33. O n the gap in average net worth betwee n black s an d whites, see , e.g., Spencer Rich , Gap Found in Wealth among Races, W A S H . P O S T , Jan . 11 , 1991, a t 3 (media n African-America n famil y ha d less tha n one-tent h o f wealth o f white ones—$4,17 0 versu s $43,280) ; Davi d Swinton , Economic Perspectives; The Key to Black Wealth: Ownership, BLAC K ENTERPRISE , July 1994 , at 24. 34. O n the bill (whic h di d not pass) b y which th e Reconstruction Con gress woul d hav e provide d thi s minimu m guarantee , see , e.g., DERRIC K BELL, R A C E , R A C I S M , A N D A M E R I C AN L A W 52 & n. 6 (3 d ed. 1992) .

Notes to Chapter 4 19 1 35. BELL , R A C E , R A C I S M , supra.

36. Fo r discussio n o f this argumen t se e Richard Delgado , Mindset and Metaphor, 10 3 H A R V. L . REV. 1972, 1973-79 (1990) . 37. See Symposium, On the Renaissance of Pragmatism in American Legal Thought, 6 3 S. C A L. L. REV. 1569 (1990) . 38. O n racist stereotype s an d beliefs , se e Richard Delgad o & Jean Ste fancic, Images of the Outsider in American Law and Culture: Can Free Expression Remedy Systematic Social Ills! 77 CORNELL L . REV. 1238 (1992). 39. Id. at 1260-61, 1276-79 , 1287-88 . 40. See J O H N H . ELY , D E M O C R A CY A N D D I S T R U ST (1980) .

41. O n this step-u p ("Pete r Principle" ) argument , se e T H O M AS SOWELL , I N S I D E E D U C A T I O N : T H E D E C L I N E , T H E D E C E P T I O N, T H E D O G M AS (1993) .

42. Joh n D . Lamb, The Real Affirmative Action Babies: Legacy Preferences at Harvard and Yale, 2 6 C O L U M. J . L. & S oc PROBLEM S 49 1 (1993). 43. Chandle r Davidson , Affirmative Action in Undergraduate Admissions, 2 R E C O N S T R U C T I ON 4 5 (1994). 44. Ala n Grob , Geography: The Invisible Preference, 2 R E C O N S T R U C T I O N 5 5 (1994).

45. C H R O N I C L E S , supra not e 13 , at ch. 1 . 46. See

S T E P H E N L . C A R T E R , R E F L E C T I O N S O F AN A F F I R M A T I VE A C -

T I O N BAB Y (1991 ) (coining terms) . 47. ELLI S C O S E , T H E R A G E O F A P R I V I L E G ED C L A S S (1994) . 48. R O Y B R O O K S, R E T H I N K I N G T H E A M E R I C AN R A C E P R O B L E M (1992) . 49. A N D R E W H A C K E R , T W O N A T I O N S : BLAC K A N D W H I T E , SEPARATE , H O S T I L E , U N E Q U A L 96 (1992) .

50. Rut h Marcus , The Distressing Case of fudge Hastings; '83 Acquittal, Race Issue, Nature of Evidence Complicate Senate Task, W A S H . P O S T , Aug. 6, 1989 , at A6. 51. Marti n Anderson , The Missing Black Professors; Ph.D. Process in Need of Radical Reform, STA R T R I B . , Oct . 18, 1993, at 15A . 52. Williams , For the Black Professional, The Obstacles Remain, N.Y . T I M E S , Jul y 14 , 1987 , at A16, col . 1.

53. Emil y Sachar , Police Nab the Wrong Passenger, N E W S D A Y , Ma y 9, 1995, a t A6. See Diana Hunt , Traffic Justice for All in Texas! Analysis Shows Racial Disparities, DENVE R P O S T , Jun e 14 , 1995, at A33, col. 3. 54. See generally R A G E , supra n o t e 4 7 . 55. I n C H R O N I C L E S , supra not e 13 , at ch. 4, Rodrigo an d the Professo r discuss the critique of normativity an d the reasons why legal rules and norms often fai l t o achieve thei r intende d effects . 56. See Jody D . Armour, Race Ipsa Loquitur: Of Reasonable Racists, Intelligent Bayesians, and Involuntary Negrophobes, 4 6 S T A N. L . REV. 781 (1994).

192 Notes

to Chapter 4

57. E.g., Black, Livelihood, supra not e 31. 58. See

C H A R L E S M U R R A Y & R I C H A R D H E R R N S T E I N , T H E BEL L C U R V E

(1994). 59. Rodrig o was good enough t o run of f fo r me, later that weekend, a printout o f th e source s h e found durin g his technologica l tour de force. Th e reade r will be interested t o kno w tha t mos t o f the informatio n h e du g up abou t sub sidies for the rich and the poor can be found i n standard databases, newspaper s and publi c documents . Thes e include d th e following : Mauree n Harrington , Welfare Myths Rampant, DENVE R P O S T , Jun e 16 , 1995 , at A l, col . 2 (small part o f federal budge t devote d t o welfare fo r the poor , Socia l Securit y an d Medicare heavil y financed) ; U.S . A D M I N I S T R A T I O N FO R C H I L D R EN AND F A M I L I E S Q U A R T E R L Y , P U B L I C A S S I S T A N C E S T A T I S T I C S , A N N U A L 199 2

(available o n CD-ROM) (o n comparativ e cos t o f AFDC); Henr y Dubroff , If America Wants Real "Welfare Reform," Let's Look at Agriculture, DENVE R P O S T , Jan . 15 , 1995 , at G-l, col . 1 (on costs o f agricultura l subsidies) ; Sparing the Rich, Soaking the Poor, Boulder, CO, DAILY C A M E R A , Jun e 11,1995 , at E1, col . 2 (heating subsidies , lega l service s fo r poor , entertainmen t expenses , and othe r comparativ e spendin g subsidies) ; Dave Skidmore , Tax Loophole for Rich Exaggerated!, DENVE R P O S T , Jun e 3,1995, at 2-A, col. 2 (rich people wh o renounce their citizenship to avoid taxes; funding o f space adventures; oil drilling subsidies; McDonald's Chicke n McNuggets) ; U.S. OFFIC E O F M A N A G E M E N T A N D B U D G E T , B U D G E T O F U . S . G O V E R N M E N T , A N N U A L 199 5 (avail -

able on CD-ROM) (for mortgage interest deductio n an d similar tax loopholes). See also Mar k Fineman , $20 Billion Loan Helping Mexico Stabilize Markets, D E N V E R P O S T , Jul y 8, 1995 , at 2-A , col . 1 .

60. See Katherin e S . Newman, What Scholars Can Tell Politicians about the Poor, C H R O N . H I G H E R ED. , Jun e 23 , 1995 , at Bl (research showe d tha t inner cit y poo r i n Harlem an d other communitie s desire d an d looke d for work, bu t coul d no t find i t because o f structural change s i n job marke t an d flight o f jobs) . On th e debat e ove r Head Start , see , e.g., Bar t Jones, Politics Set Aside As Head Start Earns A's, T I M E S U N I O N , Ma y 14 , 1995 , at C I. 61. O n th e Californi a Civi l Right s Initiative , whic h woul d prohibi t mos t forms o f official affirmativ e actio n i n that state , se e Charles Oliver , Next Hot Button in California, INVESTOR' S BUS . DAILY , Ma y 9 , 1995 , at 41. On othe r proposals elsewhere , se e Jerd Smith , Race-Based Initiative Eyed, 4 6 DENVE R Bus. J . 1 (1995). 62. Mille r v . Johnson, 6 3 USLW 4726 (Jun e 27 , 1995) . 63. Missour i v . Jenkins, 63 USLW 4486 (Jun e 13 , 1995). 64. Aderan d Construction , Inc. , v. Secretar y o f Transportation, 6 3 USL W 4523 (Jun e 13 , 1995). 65. Fo r thes e an d othe r drear y statistic s documentin g blacks ' misery , se e HACKER, T W O N A T I O N S , supra not e 49 . Recently, th e U.S . surpassed Grea t

Notes to Chapter 4 19 3 Britain a s the country wit h th e greatest ga p between ric h an d poor. Dian a Somerville, No, We Are Not Making This Up, Boulder, CO , D A I L Y C A M E R A , June 13 , 1995, a t 7-2 , col. 1. See also Richar d Whitmore , Infant Mortality Rate Still Dropping: But Racial Gap Is Growing Wider, DENVE R P O S T , Jul y 10, 1995 , at A3, col. 5; Top Countries for Quality of Life, W A S H . P O S T , NOV . 5, 1991 , at B5 (U.S. ranks lo w in life expectancy , infan t health , an d simila r measures o f personal an d economic well-being) . 66. H A C K E R , supra, a t 135 .

67. Id. at 108, 116-17 . 68. Special Issue: America's Immigrant

Challenge,

T I M E , Fal l 1993 . See

also PETE R B R I M E L O W , A L I E N N A T I O N (1993) . B y 2000, th e Worl d Ban k

forecasts, whit e me n will constitut e onl y 45 percent of the U.S. workforce . 69. See, e.g., Hugh Dellios , Racism Reported in Wake of Prop. 187, D E N VER P O S T , Dec . 18, 1995, a t 12A , col. 2; Richard Cohen , Where Will This Good-Intentioned Road Leadl DENVE R P O S T , Jun e 8 , 1995, at 7B, col. 2 (o n California initiativ e t o end affirmative action) . 70. Koremats u v . United States , 32 3 U.S. 21 4 (1944); see Hirabayashi v. United States , 320 U.S. 81 (1943) (als o upholdin g wartim e measure s agains t Japanese Americans) . 71. See D E E B R O W N, BUR Y M Y H E A R T A T W O U N D E D K N E E 439-4 5 (1970); R O B E R T A . W I L L I A M S , J R . , T HE A M E R I C AN I N D I A N I N W E S T E R N

LEGAL T H O U G H T : T H E D I S C O U R S E S O F C O N Q U E ST (1990 ) (o n broad pat -

tern of treachery an d broken promise s in U.S.-Indian dealings) . 72. I A N H A N EY L O P E Z , W H I T E B Y L AW (1995).

73. Id. 74. Fran k Rich , Smoking G.O.P. Guns, N.Y . T I M E S , Jun e 29 , 1995 , a t A21. 75. O n the rise of the private militias , se e Patriot Games, T I M E , Dec . 19, 1994, a t 48. 76. Gusta v Niebuhr , A Vision of an Apocalypse: The Religion of the Far Right, N . Y . T I M E S , Ma y 22 , 1995 , at A6, col. 1.

77. "Th e Civi l War" (PBS , Sept. 1990) . 78. SHELB Y F O O T E , STAR S I N T H E I R C O U R S E S : T H E G E T T Y S B U R G C A M P A I G N June-Jul y 186 3 (1994) ; C H I C K A M A U G A , A N D O T H E R C I V I L

W A R STORIE S (Shelb y Foote ed., 1993) . 79. JAC K G R E E N B E R G , C R U S A D E R S I N T H E C O U R T S : H O W A D E D I CATED B A N D O F LAWYER S F O U G H T FO R C I V I L R I G H T S R E V O L U T I O N

(1994). 80. Patriot, supra not e 75. 81. P E T E R I R O N S , J U S T I C E A T W A R (1983) .

82. Davi d Johnsto n & Stephe n Labaton , FBI Shaken by Inquiry into Idaho Siege, N . Y . T I M E S , NOV . 25, 1993, at A l. See also Stev e Higgins ,

194 Notes

to Chapter 5

Former Director of ATF Explains "Why We Had to Act in Waco," DENVE R P O S T , Jul y 15 , 1995 , at 7B , col. 1. 83. E.g., R I C H A R D D E L G A D O E T AL., W O R DS T H A T W O U N D : C R I T I C A L R A C E T H E O R Y , ASSAULTIV E S P E E C H , A N D T HE F I R ST A M E N D M E N T (1993) ;

Isabel Wilkerson , Racial Harassment Altering

Blacks' Choices on Colleges,

N . Y . T I M E S , Ma y 9 , 1990 , a t A l .

84. Susa n Swar d e t al., Pardee Dies after Melee with Police-, Witnesses Describe It As Brutal Beating, S.F . C H R O N ., Jun e 6, 1995, at A l. 85. Car l Rowan , Law Enforcement Needs to Clean Up Its Act, DENVE R P O S T , Jul y 18 , 1995 , at 7B , col. 2.

86. See Juan Perea , Demography and Distrust: An Essay on American Language, Cultural Pluralism, and Official English, 77 M I N N. L . REV. 26 9 (1992); Abigail M. Thernstrom, Bilingual Miseducation, C O M M E N T A R Y , Feb. 1990, a t 44. 87. Sa m Howe Verhovek , Stop Benefits for Aliens! It Wouldn't Be That Easy, N.Y . TiMES , Jun e 8, 1994, at A l, col. 1 . See also ch . 6 this volume . 88. Californi a Assembl y Join t Res . #49, Aug. 23, 1993 , urging Congres s to amend Fourteent h Amendmen t t o limit citizenshi p t o persons "bor n i n the United State s t o mothers wh o are citizens." 89. See B E N W A T T E N B E R G , T H E B I R TH D E A R T H (1987) ; BEL L C U R V E ,

supra not e 58 . For a critique o f this movement , se e STEPHE N JA Y G O U L D , T H E MISMEASUR E O F M AN (1981). Fo r brie f recen t survey s o f the movement, se e Richard Lacayo , For Whom the Bell Curves: A New Book Raises a Ruckus by Linking Intelligence to Genetics and Race, T I M E , Oct . 24, 1994 , at 66} Is It Destiny! NEWSWEEK , Oct . 24, 1994 (cover story) . 90. Richar d Delgad o e t al., Can Science Be Inopportune! Constitutional Validity of Governmental Restrictions on Race-IQ Research, 3 1 UCLA L . REV. 128 , 137-44(1983). 91. Mem o fro m Joh n Tanton t o Witan IV Attendees (Oct . 10 , 1986, on file with author) . 92. JEA N R A S P A I L , C A M P O F T HE S A I N TS (1973) .

93. Id. See also Rut h Coniff , The War on Aliens: The Right Calls the Shots, T H E PROGRESSIVE, Oct . 1993, at 22.

Notes to Chapter 5 1. Th e dark tal e t o whic h Rodrig o refer s i s hi s friend Laz ; s race-wa r scenario, which he laid out in ch. 4, supra thi s volume . 2. See id.} Elizabet h Shogren , Immigrants Denied Welfare under Plan, DENVER P O S T , Jul y 26 , 1995 , at 9-A, col . 1 . See also ch . 6, infra thi s volume . 3. Ever y la w school mus t underg o periodi c inspectio n b y a committee of outside lawyer s an d law professors i n order t o remain accredited . Team s of

Notes to Chapter 5 19 5 about si x visitors spen d tw o or three day s a t the school conductin g inter views, reviewing documents, an d examining the physical facilities, followin g which they issue a report and note any significant deficiencies . 4. Marth a Nussbaum , Patriotism and Cosmopolitanism, BOSTO N REV. , Oct./Nov. 1994 , at 3. 5. Tod d Gitlin , The Rise of Identity PoHtics: An Examination and Critique, D I S S E N T , SPRIN G 1993 , a t 172 .

6. Th e professor i s referring t o Jeremy Waldron , Minority Cultures and the Cosmopolitan Alternative, 2 5 U. M I C H . L.J . REF. 751 (1992). 7. Fo r an elaboration o f Rodrigo' s view s an d novel, self-interest-base d argument fo r affirmative action , se e RICHAR D D E L G A D O , T H E RODRIG O CHRONICLES, ch . 1 (1995). 8. See CHRI S BROWN , INTERNATIONA L RELATION S THEORY : N E W NORMATIVE APPROACHE S (1992) ; UNIVERSALIS M VERSU S C O M M U N I T A R I -

ANISM (Davi d M . Rassmusse n ed. , 1990) ; Davi d Hollinger , Postethnic America, 2 CONTENTION 79 (1992). 9. Waldron , supra not e 6, at 754 . 10. Id. at 751, 793. 11. id . at 762-63. 12. Id. at 762. 13. Id. at 763. 14. Id. at 762. 15. See Gary Peller, Race Consciousness, 199 0 DUKE L.J . 755 . 16. Waldron , supra not e 6, at 762-63. 17. Id. at 77 1 (quotin g Karl Marx). 18. Id. at 761-63, 776. 19. Id. at 754, 756 , 769-74. 20. Id. at 763. 21. Id. 22. Ch . 4, supra thi s volume . 23. Rober t Williams , Encounters on the Frontiers of International Human Rights Law: Redefining the Terms of Indigenous Peoples' Survival in the World, 199 0 DUKE L.J . 660 .

24. See Theresa Simpson , Claims of Indigenous People to Cultural Property in Canada, Australia, and New Zealand, 1 8 HASTINGS INT' L & C O M P .

L. REV . 195 (1994). 25. See supra note s 23-24 . 26. See Derrick Bell , Brow n v. Board of Education and the Interest-Convergence Dilemma, 9 3 HARV. L . REV. 518 (1980); Richar d Delgad o & Jean Stefancic, Brow n v. Board of Education: Law Reform and the Reconstructive Paradox, 3 6 W M. 8k MARY L . REV. 547 (1995). 27. Waldron , supra not e 6, at 751-52, 775.

196 Notes

to Chapter 6

28. S A L M A N R U S H D I E , S A T A N I C VERSE S (1992) .

29. Joh n H . Merryman, Two Ways of Thinking about Cultural Property, 80 A M . J. I N T 'L L . (1986); Thinking about the Elgin Marbles, 8 3 M I C H. L . REV. 188 1 (1985). 30. Simpson , supra not e 24 , at 197 . 31. Id. at 196-99 , 218-20 ; Robi n A . Morris, Legal and Ethical Issues in the Trade of Cultural Property, 199 0 N. Z. L.J. 40. 32. Simpson , supra not e 24 (analyzing four countries ' laws) . 33. Id. at 197 n.7, 199-20 4 (discussin g treatie s an d U.N. conventions) . 34. Merryman , Two Ways-, Elgin Marbles, bot h supra not e 29. 35. Elgin Marbles, supra. 36. Waldron , supra not e 6 , at 763-64. 37. Id. at 793 . 38. R O D R I G O C H R O N I C L E S , supra not e 7 , at ch. 1.

39. Id. 40. BOSTO N REV. , supra not e 4 (comment b y George Fletcher) . 41. See R O D R I GO C H R O N I C L E S , supra not e 7 , at ch. 5.

42. Id. 43. Id. 44. B O S T O N REV. , supra not e 4, at 29 (comment b y Michael Walzer) . 45. Fo r an earlier versio n o f this argument , se e Richard Delgad o & Jean Stefancic, Cosmopolitanism Inside Out, 26 C O N N. L . REV. (1995). 46. Waldron , supra not e 6 , at 26 (quoting Rushdie—" a lov e son g t o ou r mongrel selve s . .. I was alread y a mongrel self") . 47. See Inside Out, supra not e 45 , at 2, 13-15. Notes to Chapter 6 1. See R I C H A R D D E L G A D O , T H E R O D R I G O C H R O N I C L E S , ch . 2 (1995) .

2. Id. 3. Fo r a description o f the California resolutio n urgin g Congres s t o begin the proces s o f amending th e Constitution t o delete th e Fourteenth Amend ment's gran t t o citizenship t o persons bor n i n the United States—tha t is, citizenship b y birth—see ch . 4, supra thi s volume . See also 199 4 H.J. Res . 396 (103 d Cong. , 2 d Sess., Aug . 3, 1994 ) (congressiona l versio n o f Californi a resolution proposin g amendmen t t o den y citizenshi p o n account o f birt h alone; a paren t mus t b e a U.S. citizen). Fo r a descriptio n o f other simila r measures limitin g immigratio n o r making thing s difficul t fo r immigrant s once the y ar e here, se e ch. 4, supra-, T HE N E W N A T I V I S M (Jua n Pere a ed., forthcoming 1996) ; Dogan , Affirmative Action Foes Multiply: Sparked by California Initiative Legislation Bids Spread Like Wildfire, DENVE R P O S T ,

Notes to Chapter 6

19 7

Aug. 6, 1995, at 23A, col . 1; Elizabeth Shogren , Immigrants Denied Welfare under Plan, DENVE R P O S T , Jul y 26, 1995 , at 9-A, col . 1. 4. Se e sources cite d supr a not e 3. 5. Fo r a description o f these sorr y chapter s i n U.S. history , se e Richar d Delgado & Jean Stefancic , Images of the Outsider in American Law and Culture, 77

C O R N E L L L . R E V . 125 8 (1992) ; I A N H A N E Y L O P E Z , W H I T E BY

L A W (1995) ; R O B E R T W I L L I A M S , T H E A M E R I C AN I N D I A N I N W E S T E R N LEGAL T H O U G H T (1990) ; H E L E N JACKSON , A C E N T U R Y O F D I S H O N O R: A S K E T C H O F T HE U N I T E D STATE S G O V E R N M E N T ' S D E A L I N G S W I T H S O M E

OF TH E I N D I A N TRIBE S (1880) ; source s cite d supra not e 3 , infra not e 17; Curtis Robinson , Calif. Governor: Welfare Breeds Thugs, DENVE R POST , Aug. 9, 1995, at 4B, col. 2 (on today's versions) . 6. See Gerald Neuman , Rhetorical Slavery, Rhetorical Citizenship, 9 0 M I C H . L . R E V . 1276 (1992 ) (reviewin g J U D I T H N . SHKLAR , A M E R I C A N

C I T I Z E N S H I P : T H E Q U E S T FO R I N C L U S I ON (1991)) ; Immig . & Nat . Ac t

§ 347 , 8 U.S.C. § 1481 (1992) (los s of nationality); T . ALEXANDER A L E I N I KOFF 8k D A V I D M A R T I N , I M M I G R A T I O N : P R O C E S S A N D P O L I C Y 854-93 1

(1985). 7. Rodrig o is concerned tha t th e professor's action s coul d constitut e evi dence of intent sufficien t t o support a denaturalization proceeding , see supra note 6. 8. Tha t i s to say, initiated b y the professor's fathe r whil e th e professo r was stil l a minor. 9. Th e professor i s referring, o f course, to the current wav e of anti-immigrant an d anti-foreigne r nativism , see supra note s 3-5 ; and th e right-wing assault o n minority hirin g an d affirmative action , id.-, Donna St . George, Preferences Targeted, DENVE R P O S T , Jul y 28, 1995 , at 2A, col . 3. 10. See Letter from Birmingham fail,

in W H A T C O U N T R Y H A V E I ? P O-

LITICAL W R I T I N G S B Y BLAC K A M E R I C A N S 11 7 (Herbert J . Storin g ed. , 1970) .

11. Compare P L A T O , Socrates' Apology, in

T H E DIALOGUES O F PLAT O

(B. Jowett ed. , 1937) . 12. Missour i v. Jenkins, 63 U.S.L.W. 4486 (Jun e 13 , 1995). 13. Mille r v. Johnson, 6 3 U.S.L.W. 4726 (Jun e 27, 1995) . 14. Aderan d Construction , Inc. , v. Secretar y o f Transportation , 1 3 U.S.L.W. 4523 (June 13 , 1995). 15. 6 0 U.S. 393 (1856). 16. See Richard Delgad o 8k Jean Stefancic , Norms and Narratives: Can Judges Avoid Serious Moral Error} 69 TEX. L . REV. 1929 (1991). 17. E.g., D I N E S H D ' S O U Z A , ILLIBERA L E D U C A T I O N (1992) ; Patric k

Healy, Budget Cuts Threaten Programs in English as a Second Language, C H R O N . H I G H E R E D . , June 16 , 1995, at A-26. See also not e 3 supra.

198 Notes

to Chapter 6

18. See L A U R E N C E T R I B E , A M E R I C A N C O N S T I T U T I O N A L L A W 629-63

(2d ed. 1988) . 19. See Symposium, The Referendum Process, 6 5 C O L O. L . R E V . 70 9 (1994) (on direct democracy) . 20. Id. 21. E.g., Reitman v . Mulkey, 40 5 U.S. 625 (1972). 22. Pete r Schuck , The Transformation of Immigration Law, 84 C O L U M . L. R E V . 1 (1984) ; PETE R S C H U C K & R O G E R S S M I T H , C I T I Z E N S H I P W I T H O U T C O N S E N T : ILLEGA L A L I E N S I N THE A M E R I C AN P O L I T Y (1986) .

23. See sources cite d note s 3-5 , 9. 24. E.g., C H A R L E S M U R R A Y &

R I C H A R D H E R R N S T E I N , T H E BEL L

C U R V E : I N T E L L I G E N C E A N D C L A SS S T R U C T U R E I N A M E R I C AN L I F E (1994) .

25. See Images, supra not e 5. 26. Id. 27. E U G E N E D . G E N O V E S E , R O L L , J O R D A N , R O L L : T H E W O R LD T H E

SLAVES M A D E 561-6 6 (Firs t Vintag e ed. , 1976) . FRANCI S L . BRODERICK , R E C O N S T R U C T I O N AN D TH E A M E R I C AN N E G R O 1865-1900 , a t 77 (1969). 28. PETE R B R I M E L O W , A L I E N N A T I O N : C O M M O N SENS E A B O U T A M E R -

ICA'S I M M I G R A T I O N DISASTE R (1995 ) (anti-immigration tract) . 29. L A W R E N C E A U S T E R , T H E P A T H T O N A T I O N AL S U I C I D E : A N ESSA Y O N I M M I G R A T I O N A N D M U L T I C U L T U R A L I SM (1990) .

30. See T HE R O D R I G O C H R O N I C L E S , supra not e 1 , at ch. 1.

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